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LAWS  OF  CALIFORNIA 


DELATING  TO 


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Laws  of  California 

Relating  to 

Women  and   Children 

Offered  to  the   State  of   California   by 
MRS.  WILLOUGHBY  RODMAN 

Chairman   of   Civics 
Los  Angeles  District 

California  Federation  of 
Women's  Clubs 


Compiled  by 

ELIZABETH  L.  KENNEY 

WILLIAM  CHAMBERS 

WILLOUGHBY  RODMAN 


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Batjmgabdt  publishing  Co. 
116  North  Broadway.  Los  Angeles,  Cal. 


Bancroft  Librarv 


PART  ONE 

Laws  Relating  to  Women 

By  Willoughby  Rodman 


TITLE  ONE-PERSONAL  RELATIONS 


Chapter  1.    As  to  Husband. 
Chapter  2.    As  to  Children. 


CHAPTER  I.— AS  TO  HUSBAND 

Marriage. 

Following  the  common  law  of  England,  the  law  of  Cali- 
fornia regards  marriage  as  a  purely  civil  contract. 

The  Civil  Code  of  California  defines  marriage  as  follows: 
"Marriage  is  a  personal  relation  arising  out  of  a  civil 
contract,  to  which  the  consent  of  parties  capable  of  making 
the  contract  is  necessary.  Consent  alone  will  not  constitute 
marriage;  it  must  be  followed  by  a  solemnization,  or  by  a 
mutual  assumption  of  marital  rights,  duties  or  obligations. ' ' 
Civil  Code,  Sec.  55. 

Elements  of  Contract. 
The  essential  elements  of  contract   are — 

1.  Parties   capable  of   contracting. 

2.  Their  consent. 

3.  A  lawful  object. 

4.  A  cause  or  consideration.  Civil  Code,  Sec.  1550. 
Hence,    to    constitute    a    valid    marriage,   two      competent 

parties  must  freely  consent  to  marry  each  other. 

3 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 


Parties. 

Who  may  contract  marriage. 

"Any  unmarried  male  of  the  age  of  eighteen  years  or 
upwards,  and  any  unmarried  female  of  the  age  of  fifteen 
years  or  upwards,  and  not  otherwise  disqualified,  are  cap- 
able of  consenting  to  and  consummating  marriage."  Civil 
Code,  Sec.  56. 

Blood  Relatives  Incompetent  to  Intermarry. 

"Marriages  between  parents  and  children,  ancestors  and 
descendants  of  every  degree,  and  between  brothers  and 
sisters  of  the  half  as  well  as  of  the  whole  blood,  and  be- 
tween uncles  and  nieces  or  aunts  and  nephews,  are  in- 
cestuous and  void  from  the  beginning,  whether  the  rela- 
tionship is  legitimate  or  illegitimate. ' '  Civil  Code,  Sec.  59. 
Marriage  of  White  Person  with  Negro  or  Mulatto,  Void. 

"All  marriages  of  white  persons  with  negroes,  mongolians 
or  mulattoes  are  illegal  and  void."    Civil  Code,  Sec.  60. 
Marriage  Void  if  Contracted  During  Life  of  Spouse. 

A  married  person  cannot  contract  a  marriage  with  an- 
other person  during  the  life  of  his  or  her  spouse,  unless 

"1.  The  former  marriage  has  been  annulled  or  dis- 
solved; 

"2.  Such  former  husband  or  wife  was  absent,  and  not 
known  to  such  person  to  be  living  for  the  space  of  five 
successive  years  immediately  preceding  such  subsequent 
marriage,  or  is  generally  reputed,  believed  by  such  per- 
son to  be  dead  at  the  time  such  subsequent  marriage  was 
contracted;  in  either  of  which  cases  the  subsequent  mar- 
riage is  valid  until  its  nullity  is  adjudged  by  a  competent 
tribune."     Civil  Code,  Sec.  61. 

Divorced  Person  Cannot  Marry  Within  One  Year. 

A  divorced  person  cannot  marry  until  after  the  expira- 
tion of  one  year  from  the  entry  of  an  interlocutory  decree, 
unless  his  or  her  spouse  shall  have  died  druing  that  year. 
(Civil  Code,  Sec.  61.  Sub.  Sec.  2,  Sees.  131,  132.) 

As  to  interlocutory  decree,  see  p.  23,  post. 

Validity  of  Marriages  Contracted  Outside  State. 
1 '  All  marriages  contracted  without  this  State,  which  would 
be  valid  by  the  laws  of  the  country  in  which  the  same  were 
contracted,  are  valid  in  this  State."     Civil  Code,  Sec.  63. 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

Consent. 

As  in  any  contract,  free  consent  is  essential  to  the  valid- 
ity of  a  marriage  contract. 

Consent  to  a  marriage  contract  is  not  free  if  obtained 
through— 

Fraud  or  Force.  (Civil  Code,  Sees.  58  and  82,  Sub  Sees.  4 
and  o.) 

Fraud  may  be  denned  as,  any  act  committed  by  a  party 
to  a  contract,  or  with  his  connivance,  with  intent  to  de- 
ceive another  party  to  the  contract,  or  to  induce  him  to  enter 
into  the  contract.  (Civil  Code,  Sec.  1572.) 

Force  is  not  specifically  defined  by  the  statutes  of  Cali- 
fornia, but  the  interpretation  usually  employed  may  be 
found  in  Section  1569  of  the  Civil  Code,  under  the  head  of 
" Duress,' '  which,  as  to  marriage  contracts,  is  defined  as, 
Unlawful  confinement  of  the  person  of  the  party,  or  of  an 
ancestor,  descendant  or  adopted  child  of  such  party;  or  un* 
lawful  detention  of  the  property  of  any  such  person;  or 
confinement  of  such  person,  lawful  in  form,  but  fraudulently 
obtained,  or  fraudulently  made  unjustly  harrassing  or  op- 
pressive. 

Object. 

The  object  of  a  contract  is  the  thing  which  it  is  agreed, 
on  the  part  of  the  party  receiving  the  consideration,  to  do 
or  not  to  do.  (Civil  Code,  Sec.  1595.) 

In  a  contract  to  marry,  the  object  is  the  marriage. 

Consideration. 

Mutual  promises  to  marry  constitute  sufficient  considera- 
tion to  support  the  contract. 

Performance. 
A  contract  to  marry  is  performed  by  marriage. 

Breach  of  Contract. 

The  law  will  not  enforce  specific  performance  of  a  con- 
tract to  marry;  that  is,  if  a  person  promise  to  marry  an- 
other, and  fail  to  keep  the  promise,  the  law  will  not  com- 
pell  him  to  marry. 

But  for  the  breach  of  such  promise,  the  other  party  may 
recover  all  damages  caused  by  the  failure  of  the  offending 
party  to  comply  with  his  promise. 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

The  amount  to  be  paid  as  damages  rests  in  the  sound 
discretion  of  a  jury.     (Civil  Code,  Sec.  3319.) 

The  elements  of  damage,  that  is,  the  matters  which  may 
be  considered  in  estimating  the  amount  of  loss  caused  by 
failure  to  perform  a  promise  of  marriage,  are  stated  as  fol- 
lows: 

"But  the  jury  aTe  not  to  be  confined  to  mere  pecuniary 
or  worldly  considerations.  It  is  their  duty  to  take  into 
consideration  the  injury  to  the  plaintiff's  feelings,  affections, 
and  wounded  pride,  and  the  pain  and  mortification  resulting 
from  the  breach  of  the  contract;  Eeed  v.  Clark,  47  Cal.  194; 
Eoyal  v.  Smith,  40  Iowa,  615;  Coolidge  v.  Neat,  129  Mass. 
146;  Bennett  v.  Beam,  42  Mich.  346;  Goodull  v.  Thurman, 
1  Head,  209;  Vanderpool  v.  Richardson,  17  N.  W.  Rep.  936. 
The  plaintiff  is  entitled  to  recover  "not  merely  an  in- 
demnity for  her  pecuniary  loss  and  the  disappointment  of 
her  reasonable  expectations  of  material  and  worldly  ad- 
vantages, resulting  from  the  intended  marriage,  but  also 
a  compensation  for  wounded  feelings  and  the  mortification 
and  pain  which  she  had  wrongfully  been  made  to  under- 
go, and  for  the  harm  they  had  been  to  her  prospects  in 
life;"  Grant  v.  Willey,  101  Mass.  356.  The  length"  of  time 
during  which  the  engagement  continued  may  also  be  taken 
into  account  in  awarding  the  damages.  For  this  may  be  a 
very  material  fact  in  determining  the  effect  of  the  breach 
upon  the  plaintiff's  conditions  and  prospects;  Lawrence  v. 
Cooke,  56  Me.  187;  Grant  v.  Willey,  101  Mass.  356;  Coolidge 
v.  Neat,  129  Id.  146;  Vanderpool  v.  Richardson,  17  N.  W. 
Rep.  936.  The  plaintiff  may  prove  her  conduct  and  appar- 
ent distress  on  hearing  of  the  defendant's  marriage  to  an- 
other; King  v.  Kersey,  2  Ind.  402.  And  evidence  that  the 
defendant  borrowed  money  of  the  plaintiff  shortly  before 
marrying  another  is  competent,  and  may  be  considered  by 
the  jury  in  fixing  the  damages;  Simmons  v.  Simmons,  8 
Mich.  318.  The  damages  are  in  the  sound  discretion  of  the 
jury,  under  the  circumstances  surrounding  the  case,  and 
upon  the  facts  proved;  Goodull  v.  Thurman,  1  Head  209. 
But  the  damages  must  be  alleged  and  proved,  otherwise  but 
nominal  damages  can  be  proved,  if  objection  be  made  at  the 
proper  time;  Glasscock  v.  Shell,  57  Tex.  215.  And  the 
plaintiff's  loss  of  health,  if  not  alleged,  is  not  a  direct  and 

6 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

proximate  result  of  the  breach,  and  is  not  admissible  on 
the  question  of  damages;  Bedell  v.  Powell,  13  Barb.  183.' ' 
Quotation  from  monographic  note  at  page  532,  vol.  63,  Amer- 
ican Decisions,  to  which  the  reader  is  referred  for  a  resume 
of  the  law  relating  to  actions  for  breach  of  promise. 

Authentication  of  Marriage. 

As  stated  above,  consent  alone  will  not  constitute  mar- 
riage. 

Marriage  must  be  followed  by  a  solemnization  as  auth- 
orized by  the  Civil  Code. 

Civil  Code,  Sec.  68,  provides:  "Marriage  must  be  licensed, 
solemnized,  authenticated  and  recorded  as  provided  in  this 
article;— 'the  article'  referred  to  comprises  section  68-79  a, 
Civil  Code. 

Article  68  continues:  "but  non-compliance  with  its  pro- 
visions by  others  than  a  party  to  the  marriage,  does  not  in- 
validate it." 

Thus  the  steps  essential  to  a  regular  marriage  are— 1. 
License;  2.  Solemnization;  3.  Authentication;  4.  Recording. 

License. 

"All  persons  about  to  be  joined  in  marriage  must  first 
obtain  a  license  therefor  from  the  county  clerk  of  the 
county  in  which  the  marriage    is  to  celebrated,  showing: 

1.  The  identity  of  the  parties; 

2.  Their  real  and  full  names,  and  places  of  residence; 

3.  Their  ages; 

4.  If  the  male  be  under  the  age  of  twenty-one,  or  the 
female  under  the  age  of  eighteen  years,  the  consent  of  the 
father,  mother,  or  guardian,  or  of  one  having  the  charge 
of  such  person,  if  any  such  be  given;  or  that  such  non-aged 
person  has  been  previously,  but  is  not  at  the  time,  married. 

For  the  purpose  of  ascertaining  these  facts,  the  clerk  is 
authorized  to  examine  parties  and  witnesses  on  oath,  and  to 
receive  affidavits  and  he  must  state  such  facts  in  the  license. 
If  the  male  be  under  the  age  of  tweny-one  years,  or  the 
female  be  under  the  age  of  eighteen,  and  such  person  has  not 
been  previously  married,  no  license  shall  be  issued  by  the 
clerk  unless  the  consent,  in  writing,  of  the  parents  of  the 
person  under  age,  or  of  one  of  such  parents,  or  of  his  or  her 
guardian,  or  of  one  having  charge  of  such  person,  be  pre- 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

sented  to  him;  and  such  consent  shall  be  filed  by  the  clerk; 
provided,  that  the  said  clerk  shall  not  issue  a  license  auth- 
orizing the  marriage  of  a  white  person  with  a  negro,  mulatto, 
or  Mongolian."    Civil  Code,  Sec.  69. 

Marriage  Without  License. 
"When  unmarried  persons,  not  minors,  having  been  liv- 
ing together  as  man  and  wife,  they  may,  without  a  license, 
be  married  by  any  clergyman.  A  certificate  of  such  mar- 
riage, must,  by  the  clergyman,  be  made  and  delivered  to  the 
parties,  and  recorded  upon  the  records  of  the  church  of  which 
the  clergyman  is  a  representative.  No  other  record  need 
be  made."     Civil  Code,  Sec.  79. 

Solemnization. 

"Marriage  may  be  solemnized  by  either  a  justice  of  the 
supreme  court,  judge  of  the  superior  court,  justice  of  the 
peace,  priest,  or  minister  of  the  gospel  of  any  denomination. '  ■ 
Civil  Code,  Sec.  70. 

"No  particular  form  for  the  ceremony  of  marriage  is 
required,  but  the  parties  must  declare  in  the  presence  of  the 
person  solemnizing  the  marriage,  that  they  take  each  other 
as  husband  and  wife."     Civil  Code,  Sec.  71. 

"The  person  solemnizing  a  marriage  must  first  require 
the  presentation  of  the  marriage  license;  and  if  he  has  any 
reason  to  doubt  the  correctness  of  its  statement  of  facts, 
he  must  first  satisfy  himself  of  its  correctness,  and  for  that 
purpose  he  may  administer  oaths  and  examine  the  parties 
and  witnesses  in  like  manner  as  the  county  clerk  does  be- 
fore issuing  the  license."     Civil  Code,  Sec.  72. 

"The  provisions  of  this  chapter,  so  far  as  they  relate  to 
the  solemnizing  of  marriages,  are  not  applicable  to  members 
of  any  particular  religious  denomination  having,  as  such,  any 
peculiar  mode  of  entering  the  marriage  relation;  but  such 
marriages  must  be  declared,  as  provided  in  section  seventy- 
six,  and  be  acknowledged  and  recorded,  as  provided  in  sec- 
tion seventy-seven."     Civil  Code,  Sec.  79a. 

Authentication. 
"The  person  solemnizing  a  marriage  must  make,  sign,  and 
endorse  upon,  or  attach  to,  the  license,  a  certificate,  showing: 
1.     The  fact,  time,  and  place  of  solemnization;  and 

8 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

2.  The  names  and  places  of  residence  of  one  or  more 
witnesses  to  the  ceremony.' '     Civil  Code,  Sec.  73. 

"If  either  party  to  any  marriage  denies  the  same,  or  re- 
fuses to  join  in  the  declaration  thereof,  the  other  may  pro- 
ceed by  action  in  the  superior  court,  to  have  the  validity  of 
the  marriage  determined  and  declared."    Civil  Code,  Sec.  78. 

Recording. 

"He  must,  at  the  request  of  and  for  either  party,  make  a 
certified  copy  of  the  license  and  certificate,  and  file  the  orig- 
inals with  the  county  recorder  within  thirty  days  after  the 
marriage."     Civil  Code,  Sec.  74. 

"If  no  record  of  the  solemnization  of  a  marriage  hereto- 
fore contracted,  be  known  to  exist,  the  parties  may  join  in 
a  written  declaration  of  such  marriage,  substantially  show- 
ing: 

1.  The  names,  ages  and  residences  of  the  parties; 

2.  The  fact  of  marriage. 

3.  That  no  record  of  such  marriage  is  known  to  exist. 
Such  declaration  must  be  subscribed  by  the  parties  and  at- 
tested by  at  least  three  witnesses."     Civil  Code,  Sec.  76. 

"Declarations  of  marriage  must  be  acknowledged  and  re- 
corded in  like  manner  as  grants  of  real  property."  Civil 
Code,  Sec.  77. 

Section  79a  provides  as  follows: 

"Where  a  marriage  is  declared  as  provided  in  said  sec- 
tion seventy-six,  the  husband  must  file  said  declaration  with 
the  county  recorder  within  thirty  days  after  such  marriage, 
and  upon  receiving  the  same  the  county  recorder  must  re- 
cord the  same;  and  if  the  husband  fails  to  make  such  de- 
claration and  file  the  same  for  record,  as  herein  provided, 
he  is  liable  to  the  same  penalties  as  any  person  authorized  to 
solemnize  marriages  who  fails  to  make  the  return  of  such 
solemnization  as  provided  by  law." 

Annulment  of  Marriage. 
A  marriage  may  be  annulled  for  the  following  causes: 
"1.  That  the  party  in  whose  behalf  it  is  sought  to  have 
the  marriage  annulled  was  under  the  age  of  legal  consent, 
and  such  marriage  was  contracted  without  the  consent  of  his 
or  her  parents  or  guardian,  or  person  having  charge  of  him 
or  her;  unless,  after  attaining  the  age  of  consent,  such  party 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

for  any  time  freely  -cohabited  with  the  other  as  husband  or 
wife. 

2.  That  the  former  husband  or  wife  of  either  party  was 
living,  and  the  marriage  with  such  former  husband  or  wife 
was  then  in  force. 

3.  That  either  party  was  of  unsound  mind,  unless  such 
party,  after  coming  to  reason,  freely  cohabit  with  the  other 
as  husband  or  wife. 

4.  That  the  consent  of  either  party  was  obtained  by 
fraud,  unless  said  party  afterward,  with  full  knowledge  of 
the  facts  constituting  the  fraud,  freely  cohabited  with  the 
other  as  husband  or  wife. 

5.  That  the  consent  of  either  party  was  obtained  by  force, 
unless  such  party  afterward  freely  cohabited  with  the  other 
as  husband  or  wife. 

6.  That  either  party  was,  at  the  time  of  marriage,  phys- 
ically incapable  of  entering  into  the  marriage  state,  and 
such  incapacity  continues  and  appears  to  be  incurable. 
Civil  Code,  Sec.  82. 

Distinction  Between  Annulment  and  Divorce. 

Annulment  is  not  the  same  as  divorce. 

A  marriage  is  dissolved  by  a  decree  of  divorce  for  causes 
occurring  after  the  marriage.  A  marriage  is  annulled  for 
causes  existing  at  the  time  of  the  marriage.  A  decree  of 
divorce  dissolves  an  existing  marriage;  it  releases  the  par- 
ties from  the  obligations  of  an  existing,  valid  contract.  A 
judgment  of  annulment  goes  to  the  contract  itself;  it  de- 
termines that  there  never  was  a  valid  contract  of  marriage 
between  the  parties.  Annulment  is  granted  when  proof  of 
the  existence  of  any  of  the  grounds  above  specified. 

Annulment  Denied,  though  cause  existed,  When 

Annulment  will  be  denied,  when  sought  on  ground  that 
person  seeking  it  was  under  legal  age,  if,  after  obtaining 
full  age,  such  party  freely  cohabits  with  the  other  as  hus- 
band or  wife.     (Civil  Code,  Sec.  82,  Sub.  1.) 

Also  when  sought  on  the  ground  of  mental  unsoundness  of 
either  party,  if,  upon  restoration  to  sanity,  such  party  freely 
cohabit  with  the  other  as  husband  or  wife.  (Civil  Code,  Sec. 
82,  Sub.  3.) 

Also  when  consent  of  party  seeking  annulment  was  ob- 
tained by  fraud,  or  force,  if  such  party  freely  cohabit  with 

10 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

the  other  as  husband  or  wife,  after  obtaining  full  knowledge 
of  the  facts  constituting  the  fraud,  or  in  case  of  force,  after 
the  marriage. 

Action  for  Annulment. 

Action  for  annulment  for  marriage  must  be  brought  in 
the  superior  court. 

Constitution  of  California,  Art.  VI.  Sec  6. 

The  laws  of  California  do  not  specifically  prescribe  the 
county  in  which  the  action  must  be  brought. 

According  to  Section  395,  Code  of  Civil  Procedure,  such 
an  action  must  be  tried  in  the  county  in  which  defendant 
resides,  at  the  commencement  of  the  action,  or  if  defendant 
is  a  non-resident  or  his  residence  is  unknown,  in  any  county 
of  the  state  which  plaintiff  may  designate  in  the  com- 
plaint. But  the  action  may  be  commenced  in  any  county 
of  the  state,  and  may  be  tried  therein,  unless  defendant  by 
certain  prescribed  proceedings,  demands  that  trial  be  had 
in  the  proper  county. 

Civil  Code,  Sec.  128,  provides  that  actions  for  divorce 
must  be  brought  in  the  county  of  plaintiff's  residence,  but 
neither  the  Civil  Code,  nor  the  Code  of  Civil  Procedure  pre- 
scribes the  county  in  which  actions  for  annulment  must  be 
commenced. 

Appeal  may  be  taken  to  the  supreme  court  from  judgment 
annulling  or  refusing  to  annul  marriage. 

Parties  and  Limitation  of  Action. 
An  action  to  obtain  a  decree  of  nullity  of  marriage  must 
be  commenced  within  the  periods  and  by  the  parties  as  fol- 
lows. 

1.  Upon  the  ground  of  non-age,  by  tile  person  who  has 
married  under  the  age  of  consent,  and  within  four  years 
after  attaining  the  age  of  consent.  (Age  of  consent — with 
males,  eighteen;  females,  fifteen);  or  by  tne  parent,  guard- 
ian, or  other  person  having  charge  of  such  non-aged  person 
at  any  time  before  the  married  minor  has  arrived  at  the  age 
of  legal  consent. 

2.  Upon  the  ground  that  either  party  had  a  husband  or 
wife  living  at  the  time  of  the  marriage;— by  either  party, 
during  the  life  of  the  other,  or  by  such  former  husband  or 
wife. 

11 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

3.  For  unsoundness  of  mind,  by  the  party  injured,  or  by 
his  guardian,  or  by  a  relative  at  any  time  before  the  death 
of  either  party. 

4.  For  fraud;— by  the  injured  party  within  four  years 
after  discovery  of  facts  constituting  fraud. 

5.  For  force;— within  four  years  after  marriage. 

6.  For  physical  incapacity;— by  the  injured  party  within 
four  years  after  the  marriage.   (Civil  Code,  Sec.  83.) 

Effect  of  Annulment  on  Children. 
A  judgment  of  nullity  does  not  affect  the  legitimacy  of 
children  begotten  before  the  judgment.  (Civil  Code,  Sec.  84.) 

DISSOLUTION  OF  MARRIAGE. 
How  Dissolved. 
Marriage  is  dissolved  only  by — 

1.  Death  of  one  of  the  parties; 

2.  Judgment  of  divorce.     (Civil  Code,  Sec.  90.) 

DIVORCE. 

Causes. 
Divorce  may  be  granted  for  any  of  the  following  causes: 

1.  Adultery. 

2.  Extreme  cruelty. 

3.  Wilful  desertion. 

4.  Wilful  neglect. 

5.  Habitual  intemperance. 

6.  Conviction   of   felony.      (Civil    Code,   Sec.    92.) 

Adultery. 

"Adultery  is  the  voluntary  sexual  intercourse  of  a  mar- 
ried person  with  a  person  other  than  the  offender's  husband 
or  wife."    Civil  Code,  Sec.  93. 

Extreme  Cruelty. 

"Extreme  cruelty  is  the  wrongful  infliction  of  grievous 
(1)  bodily  injury,  or  grievous  (2)  mental  suffering  upon  the 
other  by  one  party  to  the  marriage."     Civil  Code,  Sec.  94. 

Extreme  cruelty  consists  in  the  infliction  of  (1)  bodily 
injury;  (2)  mental  suffering. 

As  stated  by  supreme  court  of  California,  in  the  case 
of  Waldron  v.  Waldron,  85  Cal.  251,  "the  flegree  of  cruelty 
which  the  law  recognizes  as  a  cause  of  divorce,  never  has 
been  exactly  defined." 

12 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

The  court  continues:  " Perhaps  as  near  an  approach  to 
an  exact  definition  as  is  practicable  is  made  t>y  Mr.  Bishop, 
who,  admitting  the  great  difficulty  of  formulating  such  a 
definition,  thinks  the  task  is  not  impossible,  and  gives,  as 
his  definition,  the  following: 

'Cruelty  is  such  conduct  in  one  of  the  married  parties,  as 
to  the  reasonable  apprehension  of  the  other  or  in  fact,  ren- 
ders cohabitation  physically  unsafe  to  a  degree  justifying  a 
withdrawal  therefrom.'  1  Bishop,  on  Marr/age  and  Divorce, 
6  Ed.  Sec.  717." 

In  this  case — Waldron  v.  Waldron — the  supreme  court 
held  that  the  infliction  of  mental  suffering  alone  does  not 
constitute  ground  of  divorce,  that  to  have  such  effect  the 
mental   suffering  must   result   in   physical   injury. 

In  this  case,  to  support  her  charge  of  cruelty,  the  plain- 
tiff charged  that  her  husband  had  frequently  applied  to  her 
vile  and  opprobrious  epithets,  and  that  such  conduct  caused 
her  to  undergo  great  mental  suffering.  It  was  not  found  that 
defendant's  conduct  or  the  mental  suffering  caused  thereby 
resulted  in  any  physical  injury  or  suffering.  The  trial 
court  granted  the  wife  a  divorce.  This  judgment  was  re- 
versed by  the  supreme  court,  on  the  ground  above  stated. 
In  its  opinion,  the  court  says: 

"The  infliction  of  grievous  mental  suffering  is  not  the 
equivalent  of  extreme  cruelty  in  a  legal  sense,  nor  is  ex- 
treme cruelty  a  necessary  inference  from  the  inflicting  of 
grievous  mental  suffering." 

The  decision  in  Waldron  v.  Waldron  was  not  unanimous. 
It  was  rendered  by  a  bare  majority,  three  Justices  dissent- 
ing. Justice  MacFarland  filed  a  dissenting  opinion  in  which 
he  vigorously  protested  against  the  decision  of  the  majority. 
His  dissenting  opinion  which  appears  at  page  266  of  85  Cal. 
is  commended  to  the  reader  as  a  masterly  expression  of  the 
most  advanced  and  enlightened  thought  upon  this  subject. 

Waldron  v.  Waldron  Overruled. 

The  doctrine  announced  in  Waldron  v.  Waldron  did  not 
long  prevail.  In  less  than  two  years,  the  supreme  court  be- 
came dissatisfied  with  its  decision,  and  in  later  cases  re- 
pudiated its  former  opinion. 

In  Barnes  v.  Barnes,  95  Cal  171,  the  supreme  court  over- 
ruled  Waldron   v.    Waldron,   holding   that   the   infliction   of 

13 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 


grievous    mental    suffering    alone    was    sufficient    eause    for 
divorce. 

The  rule  announced  in  Barnes  v.  Barnes  was  held  correct 
and  applied  in  Smith  v.  Smith,  119  Cal.  183,  where  the  court 
says  that,  to  justify  a  divorce  on  the  ground  of  extreme 
cruelty,  it  is  not  necessary  to  show  that  plaintiff  suffered 
any  impairment  of  health.  See  also  Andrews  v.  Andrews,  120 
Cal.  184.  It  is  now  the  settled  rule  in  California  that  th© 
infliction  upon  plaintiff  of  grievous  mental  suffering  alone, 
without  physical  injury,  is  sufficient  ground  for  divorce. 

As  to  the  exact  nature  or  degree  of  mental  suffering 
sufficient  to  constitute  extreme  cruelty,  no  precise  rule  is, 
or  can  be,  prescribed.  As  said  in  Barnes  v.  Barnes  above 
referred  to,  "  Whether  in  any  given  case  there  has  been  in- 
flicted this  'grievous  mental  suffering '  is  a  pure  question  of 
fact,  to  be  deduced  from  all  the  circumstances  of  each  par- 
ticular case,  keeping  always  in  view  the  intelligence,  ap- 
parent refinement,  and  delicacy  of  sentiment  of  the  com- 
plaining party;  and  no  arbitrary  rule  of  law  as  to  what  par- 
ticular probative  facts  shall  exist  in  order  to  justify  a  find- 
ing of  the  ultimate  facts  of  its  existence  can  be  given." 

In  his  dissenting  opinion,  in  Waldron  v.  Waldron  above 
referred  to,  Mr.  Justice  MacFarland  says:  "And  while  ex- 
treme cruelty  of  either  kind  cannot,  in  the  very  nature  of 
things,  be  accurately  defined,  there  is  often  misconduct  so 
far  outside  of  and  beyond  that  produced  by  the  ordinary 
weaknesses  and  passions  of  men  that  the  common  judgment 
of  mankind  pronounces  it  extremely  cruel.  Every  case 
where  a  divorce  is  sought  on  this  ground,  must  depend  upon 
its  own  particular  facts;  and  a  correct  decision  must  depend 
—as  most  cases  depend— upon  the  sound  ©ense  and  judg- 
ment of  juries  and  courts. ' '    95  Cal.  177. 

The  following  acts  productive  of  mental  suffering  have 
been  held  to  constitute  extreme  cruelty,  within  the  meaning 
of  section  94,  Civil  Code: 

Calling  the  wife  vile  names  and  charging  her  with  in- 
fidelity.    Venzke  v.  Venzke,  94  Cal.  235. 

Calling  vile  names,  charging  infidelity,  and  accusing  wife 
of  attempting  to  poison  husband.  Andrews  v.  Andrews,  120 
Cal.  184. 

14 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

As  to  the  infliction  of  bodily  injury  as  constituting  ex- 
treme cruelty. 

Owing  to  the  nature  of  the  subject  the  courts  have  de- 
clined to  define  cruelty  affirmatively. 

The  definition  given  by  Lord  Stowell,  an  English  judge, 
is  the  best  known;  but  he  gives  rather  a  description  of 
what  is  not  cruelty,  than  a  definition  of  cruelty.  Lord 
Stowell  says,  in  Westmeath  v.  Westmeath,  2  Hay.  Ecc.  Supp. 
1  4  Eng.  Eccl.  238,  "In  respect  to  the  law,  the  question 
naturally  occurs,  what  constitutes  cruelty  In  view  of  the 
law,  and  it  is  difficult  and  hardly  safe,  and  at  the  same  time 
it  is  unnecessary,  to  define  it  affirmatively  with  precision. 
It  can  only  be  described  generally,  and  rather  by  effects 
produced  than  by  acts  done." 

American  courts  have  defined,  or  rather,  described 
cruelty  as  any  conduct  causing  injury  to  life,  limb  or  health, 
or  creating  an  apprehension  of  such  injury. 

See  9  American  &  English  Encyclopedia  of  Law,  (2nd  Ed.) 
p.  785. 

In  an  early  case  in  California,  the  Court  says  "extreme 
cruelty  is  any  conduct  in  one  of  the  married  parties  which 
furnishes  reasonable  apprehension  that  the  continuance  of 
the  cohabitation  would  be  attended  by  bodily  harm  to  the 
other.'"    Morris  v.  Morris,  14  Cal.  76. 

The  definitions  of  text  writers  are  not  uniform,  but  they 
agree  that  the  test  of  cruelty  iB  physical  harm. 

What  Acts  Sufficient. 

Gross  acts  of  cruelty  are  usually  sufficient,  such  as  an  at- 
tempt to  kill,  or  poison,  knocking,  striking  with  hand  or 
weapon,  choking,  pulling  hair,  spitting  in  wife's  face,  or 
throwing  water  and  threatening  violence. 

See  cases  collected  at  pp.  789-790,  9  Am.  &  Eng.  Cyc.  Law 
(2nd  Ed.) 

It  has  been  held  that  conduct  of  defendant  which  gives 
plaintiff  a  reasonable  ground  to  apprehend  injury,  if  cohab- 
itation is  continued,  constitutes  cruelty.  What  misconduct 
will  create  such  apprehension  is  a  question  of  fact. 

See  9  Am.  &  Eng.  Encyc.  Law,  (2nd  ed.)  p.  789. 

It  is  not  necessary  that  acts  of  cruelty  be  persistent  or 
become  a  fixed  habit,  in  order  to  give  ground  for  divorce. 
Mahone  v.  Mahone,  19  Oal.  626. 

15 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

It  is  sufficient  that  on  two  occasions  derendant  beat  and 
kicked  plaintiff,  so  violently  as  to  cause  marks  which  re- 
mained several  days.  Eidenmuller  v.  Eidenmuller,  37  Cal. 
364.  In  this  case,  it  was  held  that  the  wife's  bad  temper 
and  persistent  scolding  of  her  husband  did  not  constitute 
a  defense  in  a  suit  for  divorce  sought  on  the  ground  of 
cruelty. 

Wilful  Desertion. 

"  Wilful  desertion  is  the  voluntary  separation  of  one  of 
the  married  parties  from  the  other  with  intent  to  desert.' ' 

The  word  "wilful,"  as  used  in  the  statute,  does  not  im- 
ply malice  or  wrong,  but  has  its  ordinary  significance,  and 
simply  means  "intentional."  Benkert  v.  Benkert,  32  Cal. 
467.  That  is,  it  must  appear  that  the  deserting  party  in- 
tended to  separate  from  the  other.  The  separation  must  also 
be  against  the  wish  of  the  other  party.  In  other  words, 
separation  must  be  both  intentional  and  wrongful.  Benkert 
v.  Benkert,  above  referred  to. 

"Persistent  refusal  (1)  to  have  reasonable  matrimonial 
intercourse  as  husband  and  wife,  when  health  or  physical 
condition  does  not  make  such  refusal  reasonably  necessary, 
or  (2),  the  refusal  of  either  party  to  dwell  in  tne  same*  house 
with  the  other  party,  when  there  is  no  just  cause  for  such 
refusal,  is  desertion."     Civil  Code,  Sec.  96. 

The  clause  ' '  when  there  is  no  just  cause  for  such  refusal  I ' 
applies  to  either  of  the  refusals  specified  in  the  statute. 
Fink  v.  Fink,  137  Cal.  559. 

"When  one  party  is  induced,  by  the  stratagem  or  fraud 
of  the  other  party,  to  leave  the  family  dwelling  place,  or 
to  be  absent  and  during  such  absence  the  offending  party  de- 
parts with  intent  to  desert  the  other,  it  is  desertion  by  the 
party  committing  the  stratagem  or  fraud,  and  not  by  the 
other."     Civil  Code,   Sec.   97. 

The  reason  underlying  this  provision  is,  that  if  absence 
be  caused  by  stratagem  or  fraud,  it  is  not  wilful  or  wrong- 
ful. 

' '  Departure  or  absence  of  one  party  from  the  family  dwell- 
ing place,  caused  by  cruelty  or  by  threats  of  bodily  harm 
from  which  danger  would  be  reasonably  apprehended  from 
the  other,  is  not  desertion  by  the  absent  party,  but  is  deser- 
tion by  the  other  party."     Civil  Code,  Sec.  98. 

16  ; 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

"Separation  by  consent,  with  or  without  the  understand- 
ing that  one  of  the  parties  will  apply  for  a  divorce,  is  not 
desertion/ '    Civil  Code,  Sec.  99. 

"Absence  or  separation,  proper  in  itself,  becomes  deser- 
tion whenever  the  intent  to  desert  is  fixed  during  such  ab- 
sence or  separation. ' '    Civil  Code,  Sec.  100. 

Mere  absence,  without  intent  to  desert,  is  not  desertion. 
But  if,  during  an  absence  with  consent  of  the  other  party, 
or  which  was  commenced  without  intention  of  deserting,  the 
absent  party  forms  an  intention  of  deserting  the  other,  the 
absence  becomes  desertion. 

"Consent  to  a  separation  is  a  revocable  act,  and  if  one 
of  the  parties  afterward,  in  good  faith,  seeks  a  reconcilia- 
tion and  restoration,  but  the  other  refuses  it,  such  refusal  is 
desertion."     Civil  Code,  Sec.  101. 

This  section  means  that,  if  husband  and  wife  agree  to  live 
separate,  and  one  of  them  should  afterward  offer  to  live  with 
the  other  again  and  the  other  refuses  so  to  do,  the  refusing 
party  is  guilty  of  desertion. 

"If  one  party  deserts  the  other,  and  before  the  expiration 
of  the  statutory  period  required  to  make  the  desertion  a 
cause  of  divorce,  returns  and  offers  in  good  faith  to  fulfil 
the  marriage  contract,  and  solicits  condonation,  the  deser- 
tion is  cured.  If  the  other  party  refuse  such  offer  and  con- 
donation, the  refusal  shall  be  deemed  ,and  treated  as  deser- 
tion by  such  party  from  the  time  of  the  refusal.' '  Civil 
Code,  Sec.  102. 

The  "statutory  period"  referred  to,  one  year  (See  C.  C. 
107.) 

Section  102  means  that,  if  one  spouse  (Jesert  the  other, 
and  within  one  year  after  desertion  returns,  asks  forgive- 
ness, offers  in  good  faith  to  resume  marriage  relations,  and 
requests  the  other  to  so  resume,  the  desertion  is  cured— that 
is,  divorce  could  not  be  granted  for  such  desertion. 

If  the  offer  to  resume  marriage  relations  be  refused,  such 
refusal  constitutes  desertion  by  the  party  refusing. 

It  has  been  held  that  the  word  "return"  as  used  in  sec- 
tion 102,  does  not  mean  an  actual  physical  return  to  the  resi- 
dence of  the  other  party.     Andrews  v.  Bunyon,  65  Cal.  629. 

"The  husband  may  choose  any  reasonable  place  or  mode 

17 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

of  living,  and  if  the  wife   does  not  conform  thereto,  it  is 
desertion."    Civil  Code,  Sec.  103. 

"If  the  place  or  mode  of  living  selected,  by  the  husband, 
is  unreasonable  and  grossly  unfit,  and  the  wife  does  not 
conform  thereto,  it  is  desertion  on  the  part  of  the  husband 
from  the  time  her  reasonable  objections  are  made  known  to 
him."    Civil  Code,  Sec.  104. 

Length  of  Time. 

To  constitute  ground  for  divorce,  wilful  desertion  must 
continue  for  one  year.     (Civil  Code,  107.) 

Wilful  Neglect. 

"Wilful  neglect  is  (1)  the  neglect  of  the  nusband  to  pro- 
vide for  his  wife  the  common  necessaries  of  life,  he  having 
the  ability  to  do  so  ;  or  it  is  (2)  the  failure  to  do  so  by  rea- 
son of  idleness,  profligacy,  or  dissipation."  Civil  Code,  Sec. 
105. 

Under  a  statute  which  stated  as  a  ground  of  divorce, 
"wilful  neglect  on  the  part  of  the  husband  to  provide  for 
his  wife  the  common  necessaries  of  life,  having  the  ability  to 
provide  the  same,  for  the  period  of  three  years"  (See  Gen- 
eral Laws  of  California,  Vol.  1,  p.  331,  Act  of  March  25, 
1851.),  it  was  held  that,  when  the  earnings  of  the  wife  were 
Sufficient  for  her  support,  and  were  applied  for  that  pur- 
pose, and  defendant  exercised  no  control  over  them,  or  inter- 
fered with  their  use,  the  wife  was  not  entitled  to  a  divorce 
on  the  ground  of  wilful  neglect.  Washburn  v.  Washburn, 
9  Cal.  475.  This  case  was  approved  and  followed  in  Ry- 
craft  v.  Rycraft,  42  Cal.  444. 

The  language  of  the  statute  under  which  this  ruling  was 
made  being  practically  the  same  as  that  of  Civil  Code,  Sec. 
105,  it  is  probable  that  a  similar  decision  would  be  made 
in  a  case  arising  under  that  section. 

In  Washburn  v.  Washburn,  above  referred  to,  it  was  also 
held  that  the  expression  "having  the  ability  to  do  so,"  re- 
ferred to  the  possession  of  property,  not  to  the  ability  to 
make  a  living.  The  Court  held  that,  to  obtain  a  divorce  on 
the  ground  of  wilful  neglect  it  was  not  sufficient  for  the 
wife  to  show  that  her  husband  was  able  to  labor,  but  that 
she  must  show  that  he  had  property  sufficient  to  support  her. 

18 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

To  constitute  a  ground  for  divorce,  wilful  neglect  must 
continue  one  year.     (Civil  Code,  Sec.  107.) 

Habitual  Intemperance. 

"  Habitual  intemperance  is  that  degree  of  intemperance 
from  the  use  of  intoxicating  drinks  whicn  (1)  disqualifies 
the  person  a  great  portion  of  the  time  from  properly  at- 
tending to  business,  or  (2)  which  would  reasonably  inflict 
a  course  of  great  mental  anguish  upon  the  innocent  party." 
Civil  Code,  Sec.  106. 

To  constitute  a  ground  for  divorce,  habitual  intemperance 
must  continue  one  year.     (Civil  Code,  Sec.  107.) 

Causes  for  Denying  Divorce. 

The  existence  of  a  cause  does  not  necessarily  entitle  the 
complaining  party  to  a  divorce.  Certain  conduct  on  the  part 
of  the  complaining  party  will  result  in  a  denial  of  a  divorce. 

Causes  for  denying  a  divorce  are  stated  by  the  Civil  Code, 
as  follows: 

"Divorces  must  be  denied  upon  showing: 

1.  Connivance;  or, 

2.  Collusion;  or4  ,        ■*.?' 

3.  Condonation;  or 

4.  Recrimination;  or, 

5.  Limitation  and  lapse  of  time."     Civil  Code,  Sec  111. 

Connivance. 

"Connivance  is  the  corrupt  consent  of  one  party  to  the 
commission  of  the  acts  of  the  other,  constituting  the  cause 
of  divorce.' '    Civil  Code,  Sec.  112. 

That  is,  if  it  appear  that  the  party  seeking  divorce  con- 
sented to  the  commission  of  the  act  constituting  ground  for 
divorce  and  such  consent  was  given  with  any  corrupt  mo- 
tive, divorce  will  be  denied. 

"Corrupt  consent  is  manifested  by  passive  permission, 
with  intent  to  connive  at  or  actively  procure  the  commission 
of  the  acts  complained  of."    Civil  Code,  Sec.  113. 

Thus,  corrupt  consent  may  be  shown  by  a  positive  act,  or 
expression,  or  by  permission  and  failure  to  object. 

Collusion. 
"Collusion  is  (1)  an  agreement  between   husband  and  wife 
that  one  of  them  shall  commit,  or  (2)  appear  to  have  com- 

19 


"LAWS  RELATING  TO  WOMEN  AND  CHILDREN 


mitted,  or  (3)  be  represented  in  court  as  having  committed 
acts  constituting  a  cause  of  divorce,  for  the  purpose  of  en- 
abling the  other  to  obtain  a  divorce. ' '  Civil  Code,  Sec.  114. 
This  section  was  intended  to  reach  cases  where  both  par- 
ties wish  a  divorce,  and,  to  obtain  it,  agree,  either  that  an 
act  constituting  cause  of  divorce  be  actually  committed,  or 
that  such  showing  be  made  as  will  cause  a  court  to  believe 
such  act  has  been  committed. 

Condonation. 

"Condonation  is  the  conditional  forgiveness  of  a  matri- 
monial offense  constituting  a  cause  of  divorce.' '  Civil 
Code,  Sec.  115. 

If  the  injured  party  forgive  the  other,  ana  marital  rela- 
tions be  resumed,  divorce  will  not  be  granted  for  the  act 
the  commission  of  which  has  been  forgiven.  The  expres- 
sion "conditional  forgiveness ' *  used  in  section  115  means 
that  the  forgiveness  is  granted  upon  condition  that  the  for- 
given party  refrain  from  a  repetition  of  the  offense,  and 
treat  the  other  with  conjugal  kindness.    Civil  Code,  Sec.  117. 

"The  following  requirements  are  necessary  to  condona- 
tion: 

1.  A  knowledge  on  the  part  of  the  condoner  of  the  facts 
constituting  the  cause  of  divorce; 

2.  Reconciliation  and  remission  of  the  offense  by  the  in- 
jured party; 

3.  Restoration  of  the  offending  party  to  all  marital 
rights."    Civil  Code,  Sec.  116. 

Each  and  all  of  these  conditions  must  exist  before  a 
marital  offense  is  considered  as  condoned. 

To  be  effective  as  condonation  an  offer  of  reconciliation 
must  be  accepted  and  acted  upon,  Benkert  v.  Benkert,  32 
Cal.  467.     See  also  Howard  v.  Howard,  134  Cal.  346. 

How  Shown. 

The  law  provides  that  when  the  cause  of  divorce  consists 
of  a  course  of  offensive  conduct;  or  excessive  acts  of  ill- 
treatment,  which,  taken  together,  constitute  the  offense; 
then  simply  living  together,  or  passive  endurance,  or  kind 
treatment  of  the  offending  party  shall  not  be  evidence  of 
condonation;  but  that  in  such  cases,  an  express  agreement 
to  condone  is  necessary.     (Civil  Code,  Sec.  118.) 

20 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

In  cases  last  referred  to,  condonation  cannot  De  made  until 
after  the  cause  of  divorce  has  become  complete.  (Civil 
Code,  Sec.  119.) 

If  the  offending  party  receives  forgiveness  for  one 
offense,  and  it  appears  that  he  or  she  concealed  from  the  in- 
jured party  facts  constituting  a  different  cause  of  divorce 
existing  at  the  time  of  condonation,  then  the  condonation  is 
avoided.  (Civil  Code,  Sec.  120.) 

How  Revoked. 

Forgiveness  having  been  granted,  is  revoked: 

1.  When  the  person  forgiven  commits  another  act  con- 
stituting ground  for  divorce. 

2.  When  the  person  forgiven  is  guilty  of  great  conjugal 
unkindness. 

It  is  not  necessary  that  such  conjugal  unkindness  be 
sufficient  in  itself  to  afford  ground  for  divorce.  It  is 
sufficient  if  it  be  habitual  and  goes  to  show  that 
forgiveness  was  not  accepted  in  good  faith,  or  that  the 
offending  party  had  not  complied  with  the  conditions  upon 
which  forgiveness  was  granted.     (Civil  Code,  Sec.  121.) 

Recrimination. 

Another  cause  for  denying  divorce  is  technically  called 
recrimination. 

1 l  Recrimination  is  a  showing  by  the  defendant  of  any 
cause  of  divorce  against  the  plaintiff,  in  bar  of  the  plaintiff's 
cause  of  divorce."     Civil  Code,  Sec.  122. 

A  person  who  has  committed  an  act  which  is  a  cause  of 
divorce,  cannot  obtain  a  divorce. 

Lapse  of  Time  as  Cause  of  Denial. 
"A  divorce  must  be  denied: 

1.  When  the  cause  is  adultery,  and  the  action  is  not 
commenced  within  two  years  after  the  commission  of  the 
act  of  adultery,  or  after  its  discovery  by  the  injured  party; 
or, 

2.  When  the  cause  is  conviction  of  felony,  and  the  action 
is  not  commenced  before  the  expiration  of  two  years  after 
a  pardon  or  the  termination  of  the  period  of  sentence; 

3.  In  all  other  cases,  when  there  is  an  unreasonable 
lapse  of  time  before  the  commencement  of  the  action." 
Civil  Code,  Sec.  124. 

21 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

The  expression  ** unreasonable  lapse  of  time,"  as  used  in 
Sec.  124,  means  such  a  delay  as  will  cause  the  court  to  be- 
lieve that  the  injured  party  has: 

1.  Consented  to  the  commission  of  the  acts  complained 
of. 

2.  Agreed  that  the  act  be  committed,  or  appear  to  hav« 
been  committed. 

3.  Forgiven  the  offense. 

4.  Acquiesced  in  the  commission  of  the  act,  and  intended 
to  continue  the  marriage  relation,  notwithstanding  its  com- 
mission.    (Civil  Code,  Sec.  125.) 

But  the  complaining  party  may  show  that  he  or  she  in 
fact,  did  not  consent  to  the  act,  agree  to  its  commission  or 
apparent  commission,  forgive  the  offense,  or  acquiesce  in  it; 
and  when  such  showing  is  made,  lapse  of  tfme  will  not  de- 
feat the  action.     (Civil  Code,  Sec.  126.) 

Plaintiff  Must  be  Resident— Time  of  Residence. 

"A  divorce  must  not  be  granted  unless  the  plaintiff  has 
been  a  resident  of  the  state  for  one  year,  and  of  the  county 
in  which  the  action  is  brought  three  months  next  preceding 
the  commencement  of  the  action.' '    Civil  Code,  Sec.  128. 

Plaintiff's  residence  must  be  actual  and  in  good  faith. 

To  obtain  a  divorce,  it  is  absolutely  necessary  to  prove 
that  plaintiff  has  resided  in  the  state  for  one  year,  and  in 
the  county  for  three  months  next  preceding  the  commence- 
ment of  the  action. 

Generally,  the  law  presumes  that  the  domicile  of  the  hus- 
band is  the  domicile  of  the  wife.  But  this  does  not  apply 
in  divorce  cases,  and  in  every  case  the  actual  residence  of 
the  wife  must  be  shown.  (Civil  Code,  Sec.  129.) 

After  separation,  husband  and  wife  may  have  separate 
domiciles,  and  their  actual  residence  is  shown  by  proof. 
(Civil  Code,  Sec.  129.) 

Acts  Must  be  Proven. 

Acts  relied  upon  as  constituting  cause  for  divorce  must 
be  proved.  If  defendant  fail  to  appear  and  contest  the  di- 
vorce, plaintiff  must,  nevertheless,  prove  the  commission  of 
the  acts  relied  upon. 

Divorce  cannot  be  granted  upon  the  testimony  of  plaintiff 
alone;  nor  upon  testimony  of  defendant  alone;  nor  upon  the 
testimony  of  both  plaintiff  and  defendant.     Nor  can  it  be 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

granted  upon  testimony  of  plaintiff  and  admissions— state- 
ments—of  defendant.  The  testimony  of  the  parties— hus- 
band and  wife— must  be  corroborated— that  is,  divorce  will 
not  be  granted  unless  witnesses  other  than  the  parties  testify 
that  the  acts  complained  of  were  committed.  (Civil  Code, 
Sec.  130.) 

The  object  of  this  provision  is,  to  prevent  too  great  facility 
in  the  obtaining  of  divorces.  Were  it  not  for  this  provision, 
persons  who  are  simply  tired  of  each  other,  could  be  re- 
leased with  slight  trouble  or  delay.  By  failing  to  appear  to 
contest  the  divorce  suit,  the  defendant  would  establish 
plaintiff's  right,  and  divorce  be  granted.  But  section  130 
requires  all  charges  to  be  proved. 

Procedure. 

Action  for  divorce  must  be  commenced  In  the  superior 
court  of  the  county  in  which  plaintiff  resides. 

After  the  action  is  commenced,  a  summons  is  served  upon 
defendant  requiring  him  or  her  to  appear  within  a  stated 
time  and  answer  the  charge. 

After  the  expiration  of  the  time  stated  in  the  summons, 
the  court  will  hear  testimony.  If  the  court,  upon  the  testi- 
mony, concludes  that  the  divorce  should  be  granted,  a  judg- 
ment is  rendered  declaring  that  the  party  in  whose  favor  the 
court  decides,  is  entitled  to  a  divorce.  This  judgment  is 
called  the  " Interlocutory  judgment' '  or  l 'Interlocutory  de- 
decree."     (Civil  Code,  Sec.  131.) 

When  one  year  has  expired,  from  the  entry  of  the  inter- 
locutory decree,  the  court  may  enter  a  final  judgment.  Civil 
Code,  Sec.  132. 

This  final  judgment  grants  the  divorce,  restores  the  parties 
to  the  status  of  single  persons  and  permits  either  husband  or 
wife  to  marry  again  thereafter      (Civil  Code,  Sec.  132.) 

According  to  the  last  two  provisions,  neither  party  to  a 
divorce  can  marry  again  within  one  year  after  the  hearing  of 
the  testimony  and  judgment  of  the  court  that  the  plaintiff 
is  entitled  to  a  divorce. 

Relief,  Though  Divorce  Denied. 

In  an  action  for  divorce,  although  the  court  may  deny  the 
divorce,  it  has  power  to  require  the  husband  to  provide  for 
the  maintenance  of  his  wife  and  children.  (Civil  Code,  Sec. 
136.) 

23  „>..;*■; 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

Expenses  Paid  by  Husband. 
In  an  action  for  divorce,  the  court  may,  in  its  discretion, 
require  the  husband  to  pay  as  alimony,  any  money  necessary 
to  enable  the  wife  to  support  herself  and  her  children, 
or  any  money  necessary  to  enable  her  to  prosecute  or  defend 
the  action.     (Civil  Code,  Sec.  137.) 

Custody  of  Children. 

In  action  for  divorce,  the  court  may,  at  any  time  during 
the  pendency  of  the  action,  or  at  the  final  hearing,  or  at  any 
time  after  final  hearing  and  during  the  minority  of  the 
children,  make  such  orders  as  it  may  deem  necessary  or 
proper  for  the  custody,  care,  education  aniT  maintenance  of 
such  minor  children.  At  any  time  the  court  may  change  or 
revoke  such  orders.  (Civil  Code,  Sec.  138.) 

Support  of  Wife  and  Children  on  Divorce  or  Separation. 

<l  Where  a  divorce  is  granted  for  an  offense  of  the  hus- 
band, the  court  may  compel  him  (1)  to  provide  for  the 
maintenance  of  the  children  of  the  marriage,  and  (2)  to  make 
such  suitable  allowance  to  the  wife  for  ner  support,  (a) 
during  her  life  or  (b)  for  a  shorter  period,  as  the  court  may 
deem  just,  having  regard  to  the  circumstances  of  the  parties 
respectively;  and  the  court,  may,  from  time  to  time,  modify 
its  orders  in  these  respects.' '     Civil  Code,  Sec.  139. 

Security  for  Maintenance  or  Alimony. 

"The  court  may  require  the  husband  to  give  reasonable 
security  for  providing  (1)  maintenance  or  (2)  making  any 
payments  required  under  the  provisions  of  this  chapter, 
and  may  enforce  the  same  (a)  by  the  appointment  of  a 
receiver,  or  (b)  by  any  other  remedy  applicable  to  the 
case."       Civil  Code,  Sec.  140. 

A  receiver  is  a  person  appointed  as  an  officer  of  the 
court,  to  take  charge  of  property  and  dispose  of  it  and 
its  rent,  profits,  and  proceeds,  as  directed  by  the  court. 

From  What  Property  Alimony  Paid. 
"In  executing  the  five     preceding    sections,    this    court 
must  resort: 

1.  To  the  community  property;    then, 

2.  To  the  separate  property  of  the  husband." 

Civil  Code,   Sec.  141. 
"The    community   property   and   the    separate   property 

24 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

may   be   subjected   to   the   support  and   education  of  the 
children   in   such   proportions   as   the    court   deems   just." 

Civil  Code,  Sec.  143. 

No  Allowance  if  Wife  has  Sufficient  Support. 
"When  the  wife  has  either  (1)  a  separate  estate,  or  (2) 
there  is  community  property  sufficient  to  give  her  (a)  ali- 
mony, or  (b)  a  proper  support,  the  court,  in  its  discretion, 
may  withhold  any  allowance  to  her  out  of  the  separate 
property  of  the  husband."  Civil  Code,  Sec.  142. 

Children  Affected  by  Divorce. 

"When  a  divorce  is  granted  for  the  adultery  of  the  hus- 
band, the  legitimacy  of  the  children  of  the  marriage  be- 
gotten of  the  wife  before  the  commencement  of  the  action 
is  not  affected."  Civil  Code,  Sec.  144. 

"When  a  divorce  is  granted  for  the  adultery  of  the  wife, 
the  legitimacy  of  children  begotten  of  her  before  the  com- 
mission of  the  adultery  is  not  affected;  but  the  legitimacy 
of  other  children  of  the  wife  may  be  determined  by  the 
court  upon  the  evidence  in  the  case."  Civil  Code,  Sec.  145. 

Disposition  of  Community  Property. 
"In  case  of  the  dissolution  of  the  marriage  by  the  de- 
cree of  a  court  of  competent  jurisdiction,  the  community 
property,  and  the  homestead,  shall  be  assigned  as  follows: 

1.  If  the  decree  be  rendered  on  the  ground  of  adultery, 
or  extreme  cruelty,  the  community  property  shall  be  as- 
signed to  the  respective  parties  in  such  proportions  as  the 
court,  from  all  the  facts  of  the  case,  and  the  condition 
of  the  parties,  may  deem  just. 

2.  If  the  decree  be  rendered  on  any  other  ground  than 
that  of  adultery  or  extreme  cruelty,  the  community  prop- 
erty shall  be  equally  divided  between  the  parties. 

3.  If  a  homestead  has  been  selected  from  the  com- 
munity property,  it  may  be  assigned  to  the  innocent  party, 
either  absolutely  or  for  a  limited  period,  subject,  in  the 
latter  case,  to  the  future  disposition  of  the  court,  or  it 
may,  in  the  discretion  of  the  court,  be  divided,  or  be  sold 
and  the  proceeds  divided. 

4.  If  a  homestead  has  been  selected  from  the  separate 
property  of  either,  it  shall  be     assigned  to  the    former 

25 


1AWS  RELATING  TO  WOMEN  AND  CHlI*DREN 


owner  of  such  property,  subject  to  the  power  of  the  court 
to  assign  it  for  a  limited  period  to  the  innocent  party." 

Civil  Code,  Sec.  146. 
Alimony  and  Maintenance  Without  Divorce. 

"When  the  wife  has  any  cause  of  action  for  divorce  as 
provided  in  section  ninety-two  of  this  code,  she  may,  with- 
out applying  for  divorce,  maintain  in  the  superior  court 
an  action  against  him  for  permanent  support  and  main- 
tenance of  (1)  herself,  or  of  herself,  and  (2)  children.  Dur- 
ing the  pendency  of  such  action,  the  court  may,  in  its  dis- 
cretion, require  the  husband  to  pay  as  alimony,  any  (3) 
moneys  necessary  for  the  prosecution  of  the  action  and  for 
support  and  maintenance,  and  execution  may  issue  there- 
for in  the  discretion  of  the  court.  The  final  judgment  in 
such  action  may  be  enforced  by  the  court  by  such  order 
or  orders  as  in  its  discretion  it  may  from  time  to  time 
deem  necessary,  and  such  order  or  orders  may  be  varied, 
altered,  or  revoked  at  the  discretion  of  the  court." 

Civil  Code,  Sec.  137. 
Obligations,  Rights  and  Duties  of  Husband  and  Wife. 

"Husband  and  wife  contract  towards  each  other  obliga- 
tions of  mutual  respect,  fidelity  and  support." 

Civil  Code,  Sec.  155. 

For  violation  of  obligation  of  respect,  the  law  provides 
no  remedy.  Relief  against  violation  of  obligation  of  fidel- 
ity and  support  is  awarded  when  the  obligation  of  fidelity 
is  broken  by  adultery,  or  the  obligation  of  support  by  wil- 
ful neglect. 

Rights  of  Husband. 

"The  husband  is  the  head  of  the  family.  He  may  choose 
any  reasonable  place  or  mode  of  living,  and  the  wife  must 
conform  thereto."  Civil  Code,  Sec.  156. 

"The  wife  must  support  the  husband,  when  he  has  not 
deserted  her,  out  of  her  separate  property,  when  he  has 
no  separate  property,  and  there  is  no  community  property, 
and  he  is  unable  from  infirmity  to  support  himself." 

Civil  Code,  Sec.  176. 

Obligations  of  Husband. 
"A  husband  is  bound  to  support  his  wife." 

Civil  Code,  Sec.  155. 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

Section  174,  Civil  Code,  by  necessary  implication  im- 
poses upon  the  husband  an  obligation  of  support. 

Section  174,  is  as  follows: 

"If  the  husband  neglect  to  make  adequate  provision  for 
the  support  of  his  wife,  except  in  the  cases  mentioned  in 
the  next  section,  any  other  person  may,  in  good  faith,  sup- 
ply her  with  articles  necessary  for  her  support,  and  re- 
cover the  reasonable  value  thereof  from  the  husband." 

Husband  is  bound  to  support  children  of  himself  and 
wife. 

But  is  not  bound  to  support  children  of  his  wife  by  a 
former  marriage.  Civil  Code,  Sec.  209. 

Husband  Not  Liable,  if  Abandoned. 
"A  husband  abandoned  by  his  wife  is  not  liable  for 
her  support  until  she  offers  to  return,  unless  she  was 
justified  by  his  misconduct,  in  abandoning  him;  nor  is  he 
liable  for  her  support  when  she  is  living  separate  from 
him,  by  agreement,  unless  such  support  is  stipulated  in 
the  agreement."  Civil  Code,  Sec.  175. 

Obligations  of  Wife. 
Obligation  of  support.^See  Civil  Code,  Sees.  155,  176, 
above  referred  to. 

Relation  as  Affecting  Property  Rights. 
"Neither  husband  nor  wife  has  any  interest  in  the  prop- 
erty of  the  other  but  neither  can  be  excluded  from  the 
other's  dwelling."  Civil  Code,  Sec.  157. 

"A  husband  and  wife  may  hold  property  as  joint  ten- 
ants,   tenants    in    common,    or    as    community    property." 

Civil  Code,  Sec.  161. 


27 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 


CHAPTER  II.— PERSONAL  RELATIONS-AS  TO 
CHILDREN 

Right  to  Children— Father  Preferred,  When. 

"The  father  of  a  legitimate  unmarried  minor  child  is 
entitled  to  its  custody,  services,  and  earnings;  -but  he 
cannot  transfer  such  custody  or  services  to  any  other  per- 
son, except  the  mother,  without  her  written  consent,  un- 
less she  has  deserted  him  or  is  living  separate  from  him 
by  agreement. 

If  the  father  (1)  be  dead,  or  (2)  be  unable,  or  (3)  re- 
fuse to  take  the  custody,  or  (4)  has  abandoned  his  family, 
the  mother  is  entitled  thereto."  Civil  Code,  S'ec.  197. 

"The  husband  and  father,  as  such,  has  no  rights  su- 
perior to  those  of  the  wife  and  mother,  in  regard  to  the 
care,  custody,  education,  and  control  of  the  children  of 
the  marriage,  while  such  husband  and  wife  live  separate 
and  apart  from  each  other."  Civil  C»>de,  Sec.  198. 

"When  a  husband  and  wife  live  in  a  state  of  separation, 
without  being  divorced,  any  court  of  competent  jurisdic- 
tion, upon  application  of  either,  if  an  inhabitant  of  this 
state,  may  inquire  into  the  custody  of  any  unmarried 
minor  child  of  the  marriage,  and  may  award  the  custody 
of  such  child  to  either,  for  such  time  and  under  such 
regulations  as  the  case  may  require.  The  decision  of  the 
court  must  be  guided  by  the  rules  prescribed  in  section 
two  hundred  and  forty-six."  Civil  Code,  Sec.  214. 

"Without  application  for  a  divorce,  the  husband  or  the 
wife  may  bring  an  action  for  the  exclusive  control  of  the 
children  of  the  marriage;  and  the  court  may,  (1)  during 
the  pendency  of  such  action,  or  (2)  at  the  final  hearing 
thereof,  or  (3)  afterwards,  make  such  order  of  decree  in 
regard  to  the  support,  care,  custody,  education,  and  con- 
trol of  the  children  of  the  marriage  as  may  be  just,  and 
in  accordance  with  the  natural  rights  of  the  parents,  and 
the  best  interests  of  the  children  and  may,  (4)  at  any 
time  thereafter  amend,  vary,  or  modify  such  order  or  de- 
cree, as  the  natural  rights  and  the  interests  of  the  parties 
including  the  children  may  require."    Civil  Code,  Sec.  199. 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

Illegitimate  Child. 
"The  mother  of  an  illegitimate  unmarried  minor  is  en- 
titled to  its  custody,  services  and  earnings." 

Civil  Code,  Sec.  200. 

Allowance  to  Parent. 

"The  proper  court  may  direct  an  allowance  to  be  made 

to  the  parent  of  a  child  out  of  its  property,  for  it's  past 

or  future   support  and   education,  on  such   conditions   as 

may  be  proper  whenever  such  direction  is  for  its  benefit." 

Civil  Code,  Sec.  201. 

No  Control  Over  Child's  Property. 

A  parent,  as  such,  has  no  control  over  the  property  of 
his  child.  Civil  Code,  Sec.  202. 

To  obtain  control  over  a  child's  property,  it  is  necessary 
that  the  parent  be  appointed  guardian. 

When  Parental  Authority  Ceases. 
"The  authority  of  a  parent  ceases: 

1.  Upon  the  appointment,  by  a  court,  of  a  guardian  of 
the  person  of  a  child; 

2.  Upon  the  marriage  of  the  child;   or, 

3.  Upon  its  attaining  majority."        Civil  Code,  Sec.  204. 

Adopted  Children. 

A  married  man  cannot  adopt  a  child  without  his  wife's 
consent.  Civil  Code,  Sec.  223. 

Nor  can  a  married  woman  adopt  a  child  without  her  hus- 
band's consent.  Civil  Code,  Sec.  223. 

Method  of  Adoption. 

See  p.  64,  post. 

As  to  the  Guardianship  of  Child. 

The   mother  may  be   appointed   guardian   of  her   child. 

"A  guardian  is  a  person  appointed  to  take  care  of  the 
person  or  property  of  another."  Civil  Code,  Sec.  236. 

"The  person  over  whom  or  over  whose  property  a  guar- 
dian is  appointed,  is  called  his  ward."  Civil  Code,  Sec.  237. 

"Guardians  are  either: 

1.  General;   or, 

2.  Special."  Civil  Code,   Sec.  238. 
"A  general  guardian  is  a  guardian  of  the  person  or  of 

all  the  property  of  the  ward  within  this  state,  or  of  both." 

Civil  Code,  iSec.  239. 

29 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

"Every  other  guardian  is  a  special  guardian." 

Civil  Code,  Sec.  240. 

Guardian.— How  Appointed. 
"A  guardian  of  the  person  or  estate,  or  of  both,  of  a 
child  born,  or  likely  to  be  born,  may  be  appointed  by  will 
or  by  deed,  to  take  effect  upon  the  death  of  the  parent 
appointing: 

1.  If  the  child  be  legitimate,  by  the  father,  with  the 
written  consent  of  the  mother;  or  by  either  parent  if  the 
other  be  dead  or  incapable  of  consent. 

2.  If  the  child  be  illegitimate,  by  the  mother." 

Civil  Code,  Sec.  241. 
If  a  guardian  be  not  appointed  by  will,  or  deed,  the  su- 
perior court  of  the  county  where   the  ward  resides  has 
power  to  appoint  a  guardian. 

Code  of  Civil   Procedure,   Sec.   1747. 
The  court  will  appoint  a  guardian  upon  petition  of  a 
relative  or  other  person  on  behalf  of  the  minor,  or  on 
petition  of  the  minor,  if  fourte%»  years  of  age. 

Code  of  Civil  Procedure,  Sec.  1747. 

Rules  for  Awarding  Custody  or  Appointing  General  Guardian 
"In  awarding  the  custody  of  a  minor  or  in  appointing  a 
general  guardian,  the  court  or  officer  is  to  be  guided  by 
the  following  considerations: 

1.  By  what  appears  to  be  for  the  best  interest  of  the 
child  in  respect  to  its  temporal  and  its  mental  and  moral 
welfare;  and  if  the  child  is  of  a  sufficient  age  to  form  an 
intelligent  preference,  the  court  may  consider  that  prefer- 
ence in  determining  the  question; 

2.  As  between  parents  adversely  claiming  the  custody 
or  guardianship,  neither  parent  is  entitled  to  it  as  of 
right;  but  other  things  being  equal,  if  the  child  is  of  ten- 
der age,  it  should  be  given  to  the  mother;  if  it  is  of  an 
age  to  require  education  and  preparation  for  labor  and 
business,  then  to  the  father; 

3.  Of  two  persons  equally  entitled  to  its  custody  in 
other  respects,  preference  is  to  be  given  as  follows: 

(1)  To  a  parent; 

(2)  To  one  who  was  indicated  by  the  wishes  of  a  de- 
ceased parent; 

30 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

(3)  To  one  who  already  stands  in  the  position  of  a 
trustee  of  a  fund  to  be  applied  to  the  child's  support; 

(4)  To  a  relative. 

4.  Any  parent  who  (1)  knowingly  or  wilfully  aban- 
dons, or  (2)  having  the  ability  so  to  do,  (3)  fails  to  main- 
tain his  minor  child  under  the  age  of  fourteen  years,  for- 
feits the  guardianship  of  such  child;  and  any  parent  or 
guardian  who  (1)  knowingly  permits  his  child  or  ward  to 
remain  for  the  space  of  one  year  in  any  orphan  asylum 
of  this  state,  wherein  such  child  is  supported  by  charity, 
and  who,  (2)  during  such  period,  fails  to  give  notice  in 
writing  to  the  managers  or  officers  of  such  asylum  that  he 
is  such  parent  or  guardian,  abandons  and  forever  forfeits 
all  rights  to  the  guardianship,  care,  custody,  and  control 
of  such  child.  The  officers  and  managers  of  any  orphan 
asylum  having  any  such  abandoned  child  in  its  care  have 
the  preferred  right  to  the  guardianship  of  such  child." 

Civil  Code,  Sec.  246. 

Guardianship   Terminated. 
"The  power  of  a  guardian  appointed  by  a  parent  is  su- 
perceded: 

1.  By  his  removal,  as  provided  by  Section  two  hundred 
and  fifty-three; 

2.  By  the  solemnized  marriage  of  the  ward;   or, 

3.  By  the  ward's  attaining  majority. 

Civil  Code,  Sec.  254. 
"The  power  of  a  guardian  appointed  by  court,  is  sus- 
pended only: 

1.  By  order  of  the  court;   or, 

2.  If  the  appointment  was  made  solely  because  of  the 
ward's  minority,  by  his  attaining  majority;   or, 

3.  The  guardianship  over  the  person  of  the  ward  by 
the  marriage  of  the  ward."  Civil  Code,  Sec.  255. 

Powers  and  Duties  of  Guardian. 
"Every  guardian  appointed  shall  have  the  custody  and 
care  of  the  education  of  the  minor,  and  the  care  and 
management  of  his  estate,  until  such  minor  arrives  at  the 
age  of  majority  or  marries,  or  until  the  guardian  is  legally 
discharged."  Code  of  Civil  Procedure,  Sec.  1753. 

31 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

Before  a  guardian's  appointment  takes  effect,  the  guar- 
dian must  give  bond  in  a  sum  to  be  fixed  by  the  court,  to 
make  an  inventory  of  the  ward's  estate  and  return  the 
same  to  the  court,  to  dispose  of  and  manage  the  ward's 
estate  according  to  law,  and  for  the  best  interests  of  the 
ward,  and  to  faithfully  discharge  all  duties  of  the  trust 
in  relation  to  the  property,  care,  custody  and  education 
of  the  ward.  The  bond  shall  also  be  to  the  effect  that 
the  guardian  shall  render  accounts  on  oath,  of  all  property, 
moneys  and  estate  of  the  ward  in  the  guardian's  hands,  and 
all  proceeds  or  interests  derived  therefrom,  and  of  the 
management  and  disposition  of  the  same;  and  at  the  ex- 
piration of  the  trust  to  settle  accounts  with  the  court  or 
with  the  ward,  if  of  full  age,  and  to  pay  over  and  delivei 
to  the  ward,  or  to  his  executor  or  administrator,  or  to  the 
guardian's  successor,  all  money  or  property  remaining 
in  his  hands.  Code  of  Civil  Procedure,  Sec.  1754. 

A  guardian  must  render  an  account  upon  the  expiration 
of  one  year  from  appointment,  and  as  often  thereafter  as 
may  be  required  by  the  Court.  Code  of  Civil  Procedure, 
Sec.  1774. 

A  guardian  must  pay  his  ward's  debts  out  of  the  ward's 
personal  estate  and  the  income  of  his  real  estate,  and  if 
these  sums  are  not  sufficient,  may  obtain  an  order  of  court 
directing  that  any  property  of  the  ward,  real  or  personal, 
be  sold  to  pay  such  debts. 

Code  of  Civil  Procedure,  Sec.  1768. 

The  guardian  must  settle  all  accounts  of  his  ward,  col- 
lect debts  duej  and  manage  the  ward's  estate  frugally  and 
without  waste,  and  apply  the  same  in  paying  for  the  sup- 
port, maintenance  and  education  of  the  ward. 

Code  of  Civil  Procedure,  Sees.  1769-1770. 

Guardian  Reimbursed. 
If  the  guardian  advance  money  for  the  support,  main- 
tanance  and     education  of    the  ward,     and  show    proper 
vouchers  therefor,  he  is  entitled  to  be  reimbursed  out  of 
the  ward's  estate.    Code  of  Civil  Procedure,  Sec.  1771. 

Sale  or  Mortgage. 
When  it  is  necessary  to  raise  money  to  support  or  edu- 
cate the  ward,  the  guardian  may,  under  order  of  court, 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

sell  any  real  or  personal  property  belonging  to  the  ward. 
Or  the  court  may  order  a  sale  when  the  best  interests  of 
the  ward  or  of  his  estate  require. 

Code  of  Civil  Procedure,  Sees.  1777-1778. 

Proceeds  of  sales,  not  necessary  to  be  used  for  ward's 
education  and  support,  may  be  invested  by  the  guardian 
under  order  of  court.    Code  of  Civil  Procedure,  Sec.  1780. 

A  guardian  may  also,  under  order  of  court,  mortgage 
or  lease  the  ward's  real  or  personal  property  to  obtain 
funds  for  the  ward's  education  and  support. 

Code  of  Civil  Procedure,  Sec.  1577. 

The  order  to  sell,  mortgage  or  lease,  is  made  by  the 
court  upon  petition,  notice  being  given  as  prescribed  by 
law.  Code  of  Civil  Procedure,  Sees.  1778,  1577,  1579. 

Expenses  and  Compensation  of  Guardian. 
Courts  will  allow  a  guardian  the  amount  of  his  reasonable 
expenses  incurred  in  the  settlement  of  his  trust;    also  a 
reasonable  compensation  for  his  services. 

Code  of  Civil  Procedure,  Sec.  1776. 
Courts  also  allow  a  guardian  a  reasonable  sum,  as  at- 
torney's fees. 


TITLE  TWO-PRORERTY  RIGHTS 

The  laws  of  California  have  done  away  with  the  old 
fiction  of  the  unity  or  identity  of  Husband  and  Wife.  This 
has  been  accomplished,  not  by  positive  enactment,  but  by 
recognition  of  woman's  independent  existence,  and  by  con- 
ferring upon  her  the  unrestricted  rights  to  own  property 
and  make  contracts. 

CHAPTER  I. 

A  woman  has  an  absolute,  unrestricted    right  to  own 
real  or  personal  property. 

Separate  Property. 
A  woman's   separate  property  consists   of  all  property 
owned  by  her  before  marriage,  and   that  afterwards  ac- 
quired by  gift,  bequest,  devise,  or  descent. 

Civil  Code,  Sec.  162. 


LAWS  EELATING  TO  WOMEN  AND  CHtIJ)REN 

That  is,  all  property,  however,  acquired,  owned  by  a 
woman  while  single,  is,  after  marriage,  her  separate 
property. 

Property  acquired  after  marriage  is  separate  property 
when  it  has  been  acquired. 

a.  By  gift — which  is  "A  transfer  of  personal  property 
made  voluntarily,  and  without  consideration." 

(Civil   Code,    Sec.    1146.) 

b.  By  bequest,  which  is  personal  property  acquired  by 
will. 

c.  By  devise  which  is  real  property  (land)  acquired  by 
will. 

d.  By  descent.  Property — either  real  or  personal  is  ac- 
quired by  descent  when  it  is  inherited  from,  a  relative  who 
dies  without  having  made  a  will. 

Separate  property  continues  to  be  such  until 
its  character  is  changed  (a)  by  its  owner  by 
sale,  gift  or  will,  (b)  by  act  of  the  law  —  as  an 
execution  sale,  (c)  by  owner's  death  without  making  a 
will.  Thus,  if  a  woman  acquire  property  through  gift,  de- 
vise or  bequest  made  by  her  husband,  it  is  her  separate 
property;  and  if  she  contracts  a  second  marriage,  the 
property  acquired  from  the  first  husband  continues  to  be 
her  separate  property.  The  rents,  issues  and  profits  of 
separate  property  are  also  separate  property  (Civil  Code, 
Sec.  162).  Thus,  if  a  woman  owning  property  marries 
and  afterward  receive  rent  or  income  from  her  property, 
the  rent  or  income  is  separate  property. 

As  to  her  separate  property,  a  woman  has  the  same 
rights  as  a  man  has  in  regard  to  his  property.  She  may 
convey  her  separate  property  without  her  husband's  con- 
sent. (Civil  Code,  Sec.  162).  She  may  dispose  of  it  by 
will. 

The  separate  property  of  a  married  woman  is  not  liable 
for  the  debts  of  her  husband  (Civil  Code,  Sec.  171).  But 
is  liable  for  her  own  debts  contracted  before  or  after 
marriage.  Civil  Code,  Sec.  171. 

But  such  property  is  liable  for  the  payment  of  debts 
contracted  by  husband  or  wife  for  necessaries  of  life  fur- 
nished to  them,  or  either  of  them,  while  living  together. 
But  this  liability  does  not  attach  to  property  owned  by  the 

34 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 


wife  at  the  time  of  marriage,  or  acquired  by  devise  or  suc- 
cession after  marriage.  Civil  Code,  Sec.  171. 

Separate  property  of  the  husband  is  defined  in  the  same 
way  as  separate  property  of  the  wife  (Civil  Code,  Sec.  163). 

The  husband's  separate  property  is  not  liable  for  the 
wife's  debts  contracted  prior  to  marriage.  (Civil  Code, 
Sec.   170). 

Community  Property. 

All  property  acquired  after  marriage  by  either  husband 
or  wife  otherwise  than  by  gift,  bequest,  devise,  or  descent, 
is  community  property.     (Civil  Code,  Sec.  164.) 

Any  money  earned  by  either  spouse,  after  marriage,  is 
community  property,  unless  the  wife  be  living  separate 
from  her  husband,  in  which  case,  the  earnings  of  herself 
and  of  her  minor  children,  living  with  her  and  in  her  cus- 
tody, are  her  separate  property.  Community  property  be- 
longs to  what  is  called  the  "community."  It  does  not  be- 
long to  the  husband  nor  to  the  wife  but  to  an  imaginary 
entity  entitled,  for  want  of  a  better  name,  "the  com- 
munity." 

The  wife  has  no  present  interest  in  such  property.  She 
has  no  estate  in  it. 

Of  the  nature  of  the  "wife's  status  in  relation  to  com- 
munity property,  the  Supreme  Court  of  California  says: 

"It  is  true  the  wife  is  a  member  of  the  community  and 
entitled  to  an  equal  share  of  the  acquests  and  gains;  but 
as  long  as  the  community  exists,  her  interest  is  a  mere 
expectancy  and  possesses  none  of  the  attributes  of  an 
estate,  either  at  law  or  in  equity".  Packard  v.  Arellanes, 
17  Cal.  525.  In  the  case  of  In  re  Burdick,  112  Cal.  387,  the 
Supreme  Court  quotes  the  language  here  quoted,  and  con- 
tinues: "The  legal  title  to  the  community  property  is  in 
the  husband.  He  has  the  absolute  dominion  and  control  of 
it,  and  the  wife  has  no  right  or  title  of  any  kind  in  any 
specific  property,  but  a  possible  interest  in  whatever  re- 
mains upon  a  dissolution  of  the  community  otherwise  than 
by  her  own  death.  This  cannot  be  classified  as  any  species 
of  estate  known  to  the  law". 

For  other  decisions  on  this  subject,  see  Van  Muren  v. 
Johnson,  15  Cal.,  308;  Directors  v.  Abila,  106  Cal.,  355; 
Spreckels  v.  SpreckCls,  116  Cal.  336;  De  Godey  v.  Godey, 
39  Cal.,  157. 

35 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

Management  and  Control. 

The  husband  has  the  management  and  control  of  the 
community  property.     Civil  Code,  Sec.  172. 

He  may  use  it  in  business,  but  the  returns  and  profits 
retain  the  character  of  community  property. 

Liability  of  Community  Property  for  Debts  of  Community. 
The  community  property  is  liable  for  debts  contracted  by 
the  community,  that  is,  for  debts  contracted  by  either  hus- 
band or  wife  for  the  benefit  of  the  community. 

Of  Husband. 
It  is  liable  for  the  debts  of  the  husband  contracted  after 
marriage,  Civil  Code,  Sec.  172.     See  also 

Of  Wife. 
The   property   of   the   community  is   not   liable   for   the 
contracts  of  the  wife  made  after  marriage.     But  it  can  be 
made  liable  therefor  by  pledge  or  mortgage  executed  by 
the  husband,  Civil  Code,  Sec.  167. 

Power  of  Disposition  of  Community  Property. 

The  husband  has  the  absolute  power  to  sell,  mortgage 
or  exchange  the  community  property.     Civil  Code,  Sec.  172. 

He  cannot  dispose  of  all  of  it  by  will.  Civil  Code,  Sec. 
172.  He  cannot  give  it  away  unless  the  wife,  in  writing, 
consents  to  the  gift.  Civil  Code,  Sec.  172. 

It  may  be  well  at  this  place  to  refer  to  the  custom 
prevalent  in  California,  of  requiring  the  wife  to  join  in  all 
conveyances  of  land  made  by  the  husband. 

Her  consent  is  not  essential  to  the  validity  of  the  hus- 
band's conveyance,  if  he  receive  any  valuable  consideration 
therefor.  But  as  he  cannot,  without  her  consent,  dispose 
of  community  property  without  receiving  a  valuable  con- 
sideration, and  as  the  facts  of  the  receipt  of  value  cannot 
be  determined  from  the  instrument  of  conveyance  alone, 
persons  buying  community  land  or  lending  money  upon 
mortgage  made  upon  it,  insist  that  the  wife  join  in  the 
deed  or  mortgage.  A  deed  of  community  property,  exe- 
cuted by  the  husband  alone  may  state  that  a  valuable  con- 
sideration has  been  received.  This  statement  is  not 
conclusive,  but  may  be  disproved  by  any  person  in  interest. 
Should  the  wife  claim  the  property  to  be  community  prop, 
erty  prove  the  statements  of  the  deed  to  be  untrue,  and  that 

36 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

value  was  not  received,  the  purchaser's  title  would  be  de- 
feated. To  prevent  the  successful  assertain  if  such  claims, 
purchasers  and  lenders  require  the  signature  of  the  wife 
to  deeds  or  mortgages  of  community  property. 

To  summarize:  The  husband  can,  alone,  dispose  of  or 
incumber  community  property  for  value. 

He  can  give  it  away,  if  the  wife  consent  in  writing.  He 
can  dispose  of  only  one  half  of  it  by  will.        See  P    Post. 

Thus  it  appears  that  the  wife  has  no  interest  in  or  power 
over  the  community  property.  Her  only  rights  in  regard 
thereto  are  (a)  a  right  to  insist  that  the  husband  receive 
value  for  any  disposition  of  it  which  he  may  make,  (b) 
a  right  to  have  certain  disposition  made  of  it  upon  the  dis- 
solution of  the  marital  community  by  divorce  or  death. 

Ultimate  Disposition  of  Community  Property. 

Upon  dissolution  of  the  marital  community,  community 
property  is  divided  between  the  spouses,  or  between  the 
survivor  and  the  heirs,  legatees,  or  devisees  of  the  other. 

The  marital  community  is  dissolved. 

(a)  By  divorce. 

(b)  By  death. 

Disposition  on  Divorce. 
When  a  marriage  is  dissolved  by  a  'decree  of  divorce, 
the   community   property   is   disposed   of   as   provided    by 
Civil  Code,  Sec.  146.     See  P.  Ante. 

The  court  has  the  power,  on  granting  decree  of  divorce, 
to  order  the  homestead  sold,  and  the  proceeds  of  sale 
divided  in  such  proportions  as  may  be  just. 

It  is  the  'duty  of  the  court,  upon  granting  decree  of  di- 
vorce, to  make  proper  orders  for  the  disposition  of  the 
community  property.  To  make  such  disposition  the  court 
has  power  to  order  a  partition  of  the  property,  which  means 
that  the  property  itself  may  be  divided  between  the 
spouses,  or  to  order  it  sold  and  its  proceeds  divided. 

Civil  Code,  Sec.  146. 

Community  property,  on  granting  of  divorce,  may  be  sub- 
jected to  the  support  of  the  children  of  the  marriage. 

Civil  Code,  Sec.  143. 

The  decisions  of  court  regarding  disposition  of  commun- 
ity property  are  subject  to  revision  on  appeal. 

It  will  thus  be  seen  that  the  wife's  only  interest  in  com- 

37 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

nrnnity  property  is  the  right  to  demand  that,  upon  dissolu- 
tion of  the  marital  community,  all,  or  a  portion  of  such 
property  be  assigned  to  her. 

Disposition  on  Death. 
Death  of  Wife. 

Upon  the  death  of  the  wife,  the  entire  community  prop- 
erty becomes  the  separate  property  of  her  surviving  hus- 
band.   Civil  Code,  Sec.  1401. 

But  if,  during  the  marriage,  a  portion  has  been  set  apart 
to  her  by  judicial  decree  for  her  support  and  maintenance, 
she  may  dispose  of  this  portion  by  will,  and  in  the  absence 
of  a  will,  it  goes  to  her  descendants,  or  to  her  heirs  ex- 
clusive of  her  husband.    Civil  Code,  Sec.  1401. 

The  mere  fact  of  the  wife's  death  is  sufficient  to  vest 
community  property  in  the  husband.  No  administration  of 
her  estate  is  necessary  for  this  purpose. 

Civil  Code,  Sec.  1401. 

Death  of  Husband. 

Upon  the  death  of  the  husband,  one  half  of  the  com- 
munity property   goes  to  the  surviving  wife. 

Civil  Code,  Sec.  1402. 

The  husband  may  dispose  of  one  half  of  the  community 
property  by  will.  In  the  absence  of  a  will,  this  one  half 
goes  to  his  descendants.  If  the  husband  die  without  a 
will  and  without  descendants,  this  one  half  of  the  com- 
munity property  is  disposed  of  in  the  same  manner  as  his 
separate  property.      Civil  Code,  Sec.  1402. 

As  to  disposition  of  separate  property  on  death  of  hus- 
band, see  p.  39,  post. 

Rights  of  Wife  in  Husband's  Property. 

The  wife  has,  during  the  life  of  her  husband,  no  estate 
or  title  to  his  separate  property. 

Upon  divorce  the  court  may  provide  for  her  support  by 
the  husband  and  may  require  him  to  give  security  based 
upon  his  separate  property,  or  may  appoint  a  receiver  of 
his  separate  property  (Civil  Code,  Sees.  139-141),  but  she 
has  not,  while  the  marriage  relation  exists,  any  estate  in 
has  husband's  separate  property. 

From  this  it  results  that  the  husband  may,  in  his  will, 
completely  ignore  his  wife.  The  law  does  not  require  him 
to  leave  her  any  portion  of  his  separate  estate. 

88 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 


If,  after  making  a  will,  a  man  marries,  and  his  wife  sur- 
vive him,  the  will  is  revoked,  unless  (a)  provision  has  been 
made  for  her  by  marriage  contract,  (b)  she  is  provided  for 
in  the  will,  (c)  She  is  mentioned  in  the  will  in  such  a 
way  as  to  show  an  intention  not  to  make  provisions  for 
her,  (Civil  Code,  Sec.  1299., 

No  other  evidence,  other  than  a  marriage  contract  in 
writing,  or  the  will  itself  can  be  admitted  to  rebut  the 
presumption  of  revocation,  that  is,  in  determining  this 
question  the  court  will  consider  only  the  will  itself  or  a 
marriage  contract. 

The  will  being  revoked,  the  husband's  separate  property 
is  disposed  of  in  the  same  manner  as  if  he  had  never  made 
a  will. 

If  the  husband  dies  without  making  a  will,  his  separate 
property  is  disposed  of  as  follows: 

If  he  leaves  a  surviving  wife  and  one  ehild,  one-half  goes 
to  the  wife,  the  other  to  the  child,  or  to  its  children,  if 
it  died  prior  to  the  father's  death. 

If  he  leaves  a  surviving  wife  and  more  than  one  child, 
one-third  goes  to  the  wife,  the  remainder  in  equal  shares 
to  his  children,  or  to  the  issue  of  such  children  as  died, 
leaving  issue,  prior  to  the  father's  death. 

If  the  husband  leave  no  children  or  issue  of  deceased, 
children,  one  half  of  his  property  goes  to  the  surviving 
wife,  the  other  half  to 

(a)  His  father  and  mother  in  equal  shares,  or  if  either 
be  dead,  the  whole  of  this  one  half  goes  to  the  other. 

(b)  If  there  be  no  father  or  mother,  one  half  goes  to 
his  brothers  and  sisters  in  equal  shares,  and  to  the  children 
of  deceased  brothers  and  sisters. 

If  the  husband  leave  neither  children  nor  issue  of  de- 
ceased children,  father,  mother,  brother  nor  sister,  his 
whole  estate  goes  to  his  surviving  wife. 

Civil   Code,   Sec.   1386. 

If  a  wife  die  prior  to  her  husband,  and  he  leave  no  kind- 
red, any  property  which  was  the  common  property  of  hus- 
band and  wife  goes  at  his  death  to  the  wife's  father,  or,  if 
he  be  dead,  to  her  mother.  If  there  be  no  father  or  mother, 
it  goes  to  her  brothers  and  sisters  in  equal  shares  and  to 
the  issue  of  any  deceased  brother  or  sister. 

Civil  Code,  Sec.  1386,  Sub.  Sec.  8. 

39 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

If  a  person  die  leaving  children  and  the  children  of  a 
deceased  child  or  children,  the  grandchildren  take  their 
portion  of  the  estate  "by  right  of  representation,"  that  is, 
all  the  children  of  a  deceased  child  together  take  the  por- 
tion which  would  have  gone  to  their  parent  had  he  or  she 
lived. 

Homestead. 
A  married  woman  may  exercise  one  right  in  regard  to 
her  husband's  separate  property,  or  the  community  prop- 
erty, that  is,  by  taking  a  certain  step  she  may 

(a)  cause  a  portion  of  it  to  be  kept  free  from  forced 
sale  to  pay  his  debts. 

(b)  place  such  portion  in  such  condition  that  her  hus- 
band cannot  sell  or  mortgage  it,  unless  she  sign  and  ac- 
knowledge the  deed  or  mortgage. 

This  right  is  known  as  the  right  of  homestead. 

A  homestead  consists  of  the  dwelling  house  in  which  the 
claimant  resides,  and  the  land  upon  which  it  is  situated, 
when  selected  in  the  manner  provided  by  law. 

Civil  Code,  Sec.  1237. 

The  word  "claimant"  means  person  who  selects  and  de- 
clares a  homestead. 

Any  married  person  may  claim  a  homestead. 

A  married  woman  may  claim  a  homestead  in 

(a)  her  separate  property, 

(b)  community  property, 

(c)  her  husband's  separate  property. 

A  married  man  may  select  a  homestead  from 

(a)  his   separate  property, 

(b)  community  property, 

(e)  his  wife's  separate  property,  provided  she  consent 
thereto,  her  consent  to  be  shown  by  her  joining  in  the 
declaration  of  homestead,  and  in  no  other  manner. 

Civil  Code,  Sees.  1238,  1239. 

Manner  of  Selecting  Homestead. 

To  secure  a  homestead,  a  married  woman  must  sign  and 
acknowledge  a  document  termed  "Declaration  of  Home- 
stead."   Civil  Code,  Sec.  1262. 

This  declaration  must  contain 

1.    A  statement  that  her  husband  has  not  made  such 

40 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

declaration,  and  that  she  makes  her  declaration  for  their 
joint  benefit. 

2.  A  statement  that  she  resides  on  the  premises  and 
claims  them  as  a  homestead. 

3.  A  description  of  the  premises. 

4.  An  estimate  of  their  actual  cash  value. 

Civil  Code,  Sec.  1263. 

The  wife  must  sign  the  declaration,  and  acknowledge  it, 
if  within  this  state,  before 

A  clerk  of  a  court  of  record 

A  county  recorder 

A  court  commissioner 

A  notary  public,  or 

A  justice  of  the  peace. 

Civil  Code,   Sec.  1181. 

If  the  declaration  be  acknowledged  outside  this  state,  !t 
must  be  before 

1.  A  justice,  judge  or  clerk  of  any  court  of  record  of 
the  United  States;  or, 

2.  A  justice,  judge,  or  clerk  of  any  court  of  record  of 
any  state;  or, 

3.  A  commissioner  appointed  by  the  governor  of  this 
state  for  that  purpose;  or, 

4.  A  notary  public;  or, 

5.  Any  other  officer  of  the  state  where  the  acknow- 
ledgment is  made,  authorized  by  its  laws  to  take  such 
proof  or  acknowledgment. 

When  signed  and  acknowledged,  the  declaration  must  be 
recorded  in  the  office  of  the  county  recorder  of  the  county 
in  which  the  land  is  situated. 

Civil  Code,  Sec.   1264. 

Value  of  Homestead. 

A  head  of  a  family  may  select  a  homestead  of  not  ex- 
ceeding $5000.00.     Civil  Code,  Sec.  1260. 

A  married  woman  whose  husband  has  not  declared  a 
homestead  has  the  rights  of  a  head  of  a  family,  so  far  as 
relates  to  homestead  rights. 

Effect  of  Declaration. 

A  declaration  of  homestead,  properly  signed,  acknow- 
ledged and  recorded,  is  effectual  as  follows: 

41 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

A.  The  land  therein  described  cannot  be  sold  for  any 
debts,  except  as  follows: 

(1)  Judgments  which  constituted  liens  upon  the  prem- 
ises and  which  were  rendered  prior  to  the  recording  of 
the  declaration. 

(2)  Debts  secured  by  liens  of  mechanics,  contractors, 
sub-contractors,  artisans,  architects,  builders,  laborers,  per- 
sons furnishing  material  for  the  construction  of  building, 
upon  the  premises,  or  liens  securing  the  purchase  price  of 
the  land. 

(3)  Debts  secured  by  mortgages  on  the  premises  signed, 
acknowledged  and  delivered  by  both  husband  and  wife. 

(4)  Debts  secured  by  mortgages  which  were  signed, 
executed  and  recorded  before  the  recording  of  the  declara- 
tion.      Civil  Code,  Sees.  1240,  1241. 

B.  The  husoand  cannot  sell  or  mortgage  the  land  un- 
less the  wife  sign,  acknowledge  and  deliver  the  deed  or 
mortgage.    Civil  Code,  Sec.  1242. 

But  if  the  husband  shall  become  hopelessly  insane,  the 
wife  may  be  authorized  to  sell  or  mortgage  the  homestead. 
Power  so  to  do  may  be  conferred  by  the  superior  court  of 
the  county  wherein  the  land  is  situated,  after  notice  given 
as  required  by  law. 

This  power  is  created,  and  the  method  of  procedure  pre- 
scribed by  Sections  1269a,  1269b,  1269c  of  the  Civil  Code. 

As  stated  above,  a  homestead  may  be  sold  to  satisfy  cer- 
tain judgments,  i.  e.,  those  enumerated  in  Sec.  1241,  Civil 
Code  above  referred  to. 

Abandonment  of  Homestead. 

A  homestead  may  be  abandoned  by  a  declaration  of  aban- 
donment signed  and  acknowledged  by  husband  and  wife, 
if  the  claimant  is  married  or  by  claimant  alone,  if  unmar- 
ried. Civil  Code,  Sec.  1243.  A  homestead  may  also  be 
abandoned  by  a  grant-deed  duly  signed  and  acknowledged. 

Civil  Code,  Sec.  1243. 

A  declaration  of  abandonment  does  not  take  effect  until 
recorded  in  the  office  of  the  recorder  of  the  county  in 
which  the  homestead  is   situated.    Civil  Code,   Sec.   1244. 

As  above  stated,  a  homestead  to  the  value  of  five  thou- 
sand dollars,  may  be  selected  by  the  head  of  the  family. 
But  the  excess  in  value  over  five  thousand  dollars  is  sub- 

42 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

ject  to  execution  and  may  be  sold  by  legal  process  for  the 
payment  of  debt. 

To  subject  the  homestead  to  sale  under  judgments  other 
than  enumerated  in  Sec.  1241,  the  court  appoints  certain 
officers  known  as  appraisers  to  view  the  land  and  determine 
its  value.  If  the  officers  report  to  the  court  that  the 
homestead  land  can  be  divided  without  material  injury, 
the  court  directs  them  to  set  off  to  the  homestead  claimant 
so  much  of  the  land,  including  the  residence,  as  will  amount 
in  value  to  five  thousand  dollars.  The  execution  may  be 
enforced  against  the  remainder. 

If  the  appraisers  report  that  the  land  cannot  be  divided, 
the  court  will  direct  that  the  land  be  sold  under  the  exe- 
cution. At  the  execution  sale,  no  bid  less  than  five  thou- 
sand dollars  will  be  received.  Upon  making  the  sale  five 
thousand  dollars  of  the  proceeds  must  be  paid  to  the  claim- 
ant, the  balance  will  be  applied  in  payment  of  the  exe- 
cution. 

The  money  paid  to  the  claimant,  is,  for  six  months  after 
payment,  entitled  to  the  same  exemptions  as  the  home- 
stead was.  During  this  period,  the  husband  cannot  dispose 
of  it  without  his  wife's  consent. 

Civil   Code.   Sec.   1257. 

The  law  governing  this  subject  is  set  forth  in  the  Civil 
Code,  Sees.  1245-1259. 

Homestead  by  Person  Other  Than  Head  of  Family. 

A  person  who  is  not  the  head  of  a  family  may  declare 
a  homestead  of  the  value  of  one  thousand  dollars.  The 
declaration  must  contain  a  statement  that  claimant  resides 
on  the  premises  and  claims  them  as  a  homestead,  a  des- 
cription of  the  premises,  and  an  estimate  of  their  actual 
cash  value.      Civil  Code,  Sees.  1263,  1207. 

As  to  recording  and  effect  of  declaration  ,the  law  Is  the 
same  as  in  regard  to  homesteads  by  heads  of  families. 

Civil   Code,   Sec.   1268-1269. 

As  to  subjecting  homestead  to  execution,  the  law  is  the 
same  as  above  stated  in  regard  to  homestead  by  head  of 
family,  substituting  when  necessary,  one  thousand  for  five 
thousand. 

Disposition  of  Homestead  at  Death. 

If  homestead  was  selected  by  a  married  person  from 

43 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

community  property,  on  the  death  of  either  spouse  the 
land  belongs  to  the  survivor.  Civil  Code,  Sec.  1265. 

If  selected  from  the  separate  property  of  either  spouse, 
upon  the  death  of  the  one  from  whose  property  it  was 
selected  the  homestead  goes  to  his  or  her  heirs,  or  to  those 
to  whom  it  is  given  by  will.       Civil  Code,  Sec.  1265. 

But  in  such  case,  the  court  in  which  the  estate  of  the 
deceased  prson  is  being  administered  may  assign  the  home- 
stead for  a  limited  period  to  the  family  of  such  deceased 
person.    Civil  Code,  Sec.  1265. 

In  no  case  except  as  provided  by  Civil  Code,  Sees.  1241 
and  1245-1259,  as  above  stated,  can  a  homestead  be  held 
liable  for  the  debts  of  the  owner.    Civil  Code,  Sec.  1265. 

As  to  whom,  the  homestead  shall  belong  in  cases  where 
it  was  selected  from  the  separate  property  of  one  of  the 
spouses,  there  is  an  apparent  inconsistency  between  Civil 
Code,  Sec.  1265,  above  referred  to,  and  Section  1474,  Code 
of  Civil  Procedure  which  provides  as  follows: 

"If  the  homestead  selected  by  the  husband  and  wife, 
or  either  of  them  during  their  coverture,  and  recorded  while 
both  were  living,  was  selected  from  the  community  prop- 
erty, or  from  the  separate  property  of  the  person  select 
ing  or  joining  in  the  selection  of  the  same,  it  vests,  on  the 
•death  of  the  husband  or  wife,  absolutely  in  the  survivor. 
If  the  homestead  was  selected  from  the  separate  property 
of  either  the  husband  or  the  wife,  without  his  or  her  con- 
sent, it  vests,  on  the  death  of  the  person  from  whose  prop- 
erty it  was  selected,  in  his  or  her  heirs,  subject  to  the 
power  of  the  superior  court  to  assign  it  for  a  limited  period 
to  the  family  of  the  decedent.  In  either  case,  it  is  not 
subject  to  the  payment  of  any  debt  or  liability  contracted 
by  or  existing  against  the  husband  and  wife,  or  either  of 
them,  previous  to  or  at  the  time  of  the  death  of  such 
husband  or  wife,  except  as  provided  in  the  Civil  Code." 

To  reconcile  this  apparent  conflict  and  set  forth  the 
decisions  of  the  courts  upon  the  subject  would  involve  a 
discussion  of  technical  questions  not  within  the  scope  of 
this  work. 


44 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 


TITLE  THREE-CONTRACT  RIGHTS 

Independent  Right  of  Contract  Not  Affected  by  Relation. 

"Either  husband  or  wife  may  enter  into  any  engagement 
or  transaction  with  the  other,  or  with  any  other  person, 
respecting  property,  which  either  might,  if  unmarried; 
subject,  in  transaction  between  themselves,  to  the  gen- 
eral rules  which  control  the  actions  of  persons  occupying 
confidential  relations  to  each  other,  as  defined  by  the  title 
on  trusts."      Civil  Code,  Sec.  158. 

A  woman  may  make  any  contract  a  man  may  make. 

"A  conveyance  by  a  married  woman  has  the  same  effect 
as  if  she  were  unmarried,  and  may  be  acknowledged,  in 
the  same  manner."     Civil  Code,  Sec.  1187. 

"A  grant  or  conveyance  of  real  property  made  by  a 
married  woman,  may  be  made,  executed  and  acknowledged 
in  the  same  manner  and  has  the  sarnie  effect  as  if  she 
were  unmarried."    Civil  Code,  Sec.  1093. 

"A  married  woman  may  make,  execute,  and  revoke 
powers  of  attorney  for  the  sale,  conveyance  or  encumb- 
rance of  her  real  or  personal  estate,  which  shall  have  the 
same  effect  as  if  she  were  unmarried  and  may  be  acknow- 
ledged in  the  same  manner  as  a  grant  of  real  property." 

Civil   Code,   Sec.   1094. 

Marriage  Settlement  Contracts. 

The  law  permits  husband,  wife,  or  those  contemplating 
the  formation  of  that  relation,  to  adjust  their  property 
right  by  contract.  In  California,  such  contracts  are  known 
as  Marrriage  Settlement  Contracts. 

By  such  contracts,  the  parties  may  define  their  mutual 
rights  and  obligations  as  to  property  and  provide  for  the 
support  of  each  other  or  their  children. 

Requisites  of  Contract. 

Such  contracts  must  be  in  writing  (Civil  Code,  Sec.  178, 
1624,  Sub.  3),  signed  and  delivered  (Civil  Code,  Sec.  178),  and 
recorded  in  the  office  of  the  county  recorder  of  every  county 
in  which  any  land  affected  is  situated. 

Civil   Code,  Sec.   179. 

"A  minor  capable  of  contracting  marriage  may  make  a 
valid  marriage  settlement."     Civil  Code,  Sec.  181. 

45 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

TITLE  FOUR-OTHER.  RIGHTS  OF 
MARRIED  WOMEN 

Rights  on  Settlement  of  Husband's  Estate. 
During  the  settlement  of  her  deceased  husband's  estate, 
a  widow  is  entitled  to  certain  allowances  and  settlements 
for  her  support.  These  allowances  are  made  temporarily 
for  her  support  pending  settlement  of  the  estate.  Other 
provisions  are  permanent. 

Temporary  Provision. 

"When  a  person  dies  leaving  a  widow  or  minor  child- 
ren, the  widow  or  children,  until  letters  are  granted  and 
the  inventory  is  returned  are  entitled  to  remain  in  posses- 
sion of  the  homestead,  of  all  the  wearing  apparel  of  the 
family  and  of  all  the  household  furniture  of  the  decedent 
and  are  also  entitled  to  a  reasonable  provision  for  their 
support,  to  be  allowed  by  the  superior  court,  or  a  judge 
thereof."    Code  of  Civil  Procedure,  Sec.  1464. 

The  inventory  referred  to  must  be  returned  within  three 
months  after  appointment  of  executor  or  administrator. 
The  allowance  referred  to  in  Section  1464;  Code  of  Civil 
Procedure,  is  a  sum  of  money  allowed  out  of  the  estate 
to  the  family  of  deceased.  It  is  made  by  the  court  upon 
application.  It  is  usually  made  payable  monthly.  Its 
amount  depends  upon  the  value  of  the  estate,  and  the  needs 
of  the  family.  In  making  the  allowance  the  court  will 
consider  the  former  mode  and  style  of  living  of  the  family 
and  its  social  position. 

If  the  amount  so  set  apart  be  found  insufficient,  the 
court  may  increase  the  amount. 

Code  of  Civil  Procedure,  Section  1466. 

The  allowance  for  support  of  decedent's  family  may  con- 
tinue until  final  settlement  of  the  estate. 

Code  of  Civil  Procedure,  Sec.  1466. 

Family  allowance  must  be  paid  in  preference  to  all 
other  charges  against  the  estate,  except  funeral  expenses, 
and   the   expenses  of  administration. 

Code  of  Civil  Procedure,  Sec.  1467. 

The  allowance  may  take  effect  from  death  of  decedent. 
Code  of  Civil  Procedure,  Sec.  1467. 

The  court  in  which  the  husband's  estate  is  being  set- 

46 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

tied  may  also  set  apart  for  a  limited  period  a  homestead 
which  had  been  selected  from  separate  property  of  deceas. 
ed.    Code  of  Civil  Procedure,  Sec.  1468. 

Permanent  Settlement. 

The  court  may  set  apart,  permanently,  homestead  for 
the  widow,  or  the  widow  and  minor  children,  or  the  minor 
children. 
Code  of  Civil  Procedure,  Sees.  1464,  1465,  1468,  1474-1486. 

This  subject  is  technical  to  such  an  extent  that  an  at- 
tempt to  simplify  it  would  unreasonably  expand  the  volume 
of  this  work.  But  the  right  of  the  widow  to  a  homestead 
is  well  established.  If  a  homestead  was  selected  during 
the  marriage,  it  may,  under  tfcp  circumstances  and  in  the 
manner  prescribed,  be  set  apart  to  the  family.  If  no  home- 
stead was  selected  during  the  marriage,  it  is  the  duty  of 
the  court  to  select,  designate,  set  apart  and  record  a 
homestead  for  the  use  of  the  surviving  wife  and  minor 
children.    Code  of  Civil  Procedure,  Sec.  1465. 

This  selection  is  made  by  a  judge  of  the  court  upon 
petition. 

All  property  exempt  from  execution,  including  the  home- 
stead, may  be  set  apart  for  the  family. 

Code  of  Civil  Procedure,  Sec.  1465. 

Section  690,  Code  of  Civil  Procedure,  states  what  property 
shall  be  exempt  from  execution,  but  the  list  is  too  long  to 
be  here  inserted. 

If  decedent  left  a  widow  only,  property  set  apart  under 
Sec.  1465,  Code  of  Civil  Procedure,  belongs  to  the  widow, 
if  he  left  a  minor  child  or  children,  one  half  belongs  to 
the  widow  and  the  other  half  to  the  child,  or  to  the  child- 
ren in  equal  shares.    Code  of  Civil  Procedure,  Sec.  1468. 

If  the  widow  has  a  maintenance  derived  from  her  separ- 
ate property  equal  to  the  homestead  and  other  exempt 
property  set  apart,  the  whole  property  so  set  apart,  except 
the  homestead,  must  go  to  the  minor  children. 

Code  of  Civil  Procedure,  Sec.  1470. 

As  to  Stock  in  Corporations. 

"Shares  of  stock  in  corporations  standing  on  the  books 

of  the  corporation  in  the  name  of  a  married  woman  may 

be  transferred  by  her,  her  agent  or  attorney,  without  the 

signature  of  her  husband,  and  in  tLe  same  manner  as  if 

47 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

such  married  woman  were  a  feme  sole.  All  dividends  payable 
upon  any  of  such  shares  of  stock,  may  be  paid  to  her,  her 
agent  or  attorney,  in  the  same  manner  as  if  she  were 
unmarried;  and  any  proxy  or  power  given  by  her,  touch- 
ing any  of  such  shares,  is  valid  and  binding,  and  neither 
it  nor  any  receipt  for  dividends  need  be  signed  by  her  hus- 
band."   Civil  Code,  Sec.  325, 

As  to  Stock  in  Homestead  Corporations. 
"Married  women  may  hold  such  shares  as  they  acquire 
with  their  personal  earnings  or  those  of  their  children  vol- 
untarily bestowed   therefor,  or  from  property  bequeathed 
or  given  to  them  by  persons  other  than  their  husbands. ' ' 

Civil  Code,  Sec.  561. 
As  to  Savings  and  Loan  Corporations. 
"Married  women  and  minors   may,  in  their  own  right, 
make  and  draw  deposits  and  draw  dividends,  and  give  valid 
receipts  therefor."     Civil  Code,  Sec.  575. 

Testamentary  Power. 

A  married  womian,  may,  without  the  consent  of  her  hus- 
band,  dispose   by  will   of  all  her   separate   property. 

Civil  Code,  Sec.  1273. 

But  if  a  woman  make  a  will  and  afterward  marry,  the 
will  is  revoked;  and  is  not  revived  by  the  death  of  her 
husband.     Civil  Code,  Sec.  1300 

Right  of  Administration. 

A  married  woman  may  act  as  executrix  of  a  will. 

Code  of  Civil  Procedure,  Sec.  1352. 

An  executrix  is  a  woman  appointed  by  will  to  settle  the 
estate  of  a  deceased  person. 

A  married  woman  may  act  as  administratrix  of  an 
estate.       Code  of  Civil  Procedure,  Sec.  1370. 

An  administratrix  is  a  woman  appointed  by  court  to  set- 
tle the  estate  of  a  person  who  dies  without  making  a  will. 
Executrix  and  administratrix  are  the  feminines  of  exe- 
cutor and  administrator. 

An  administratrix  with  the  will  annexed,  is  a  woman 
appointed  by  court  to  settle  the  estate  of  (1)  a  person 
who  dies  leaving  a  will  but  who  appoints  no  executor  or 
executrix,  or  (2)  to  settle  an  estate  when  the  executor 
or  executrix  named  in  the  will  has  failed  to  qualify  or  has 
'died  or  resigned  or  has  been  removed. 

48 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

A  surviving  wife  is  entitled  to  preference  in  appoint- 
ment of  an  administrator  of  her  husband's  estate.  Code  of 
Civil  Procedure,  Sec.  1365,  Sub.  1.  If  she  does  not  wish  to 
be  appointed  herself,  she  may  select  another  person,  and 
the  person  selected  by  her  is  entitled  to  preference  over  the 
children,  or  other  relatives  of  deceased. 

She  cannot  act  if  she  is  under  the  age  of  majority,  not 
a  bona  fide  resident  of  this  state,  convicted  of  an  infam- 
ous crime,  or  adjudged  incompetent  by  reason  of  drunken- 
ness, improvidence  or  want  of  understanding  or  intelli- 
gence. 

It  is  the  right  and  duty  of  an  executrix  to  take  into 
her  possession  all  of  the  property  of  the  deceased  person 
and  properly  care  for  it,  to  collect  all  money  due  him,  pay 
his  debts,  pay  legacies,  and  distribute  the  estate  under 
order  of  court  to  the  persons  entitled  to  receive  it. 

When  necessary  to  pay  debts  or  expenses  of  administra- 
tion, or  the  sum  allowed  by  court  for  the  family  of  the  de- 
ceased, an  executrix  or  administratrix  may,  under  order 
of  court,  sell,  mortgage  or  lease  any  real  property  be- 
longing to  the  estate.  She  may  sell  personal  property, 
under  order  of  court,  when  such  sale  is  necessary  to  pay 
debts  or  expenses,  or  if  the  property  is  likely  to  depreciate, 
or  if  its  care  and  custody  would  cause  loss  and  expense  to 
be  incurred. 

She  must  return  to  the  court  an  accurate  inventory  of 
all  property  of  decedent,  and  account  for  all  property,  real 
and  personal  . 

An  executrix  or  administratrix  shall  not  make  profit 
by  the  increase,  nor  suffer  loss  by  the  decrease  of  destruc- 
tion without  her  fault,  of  property  of  the  estate,  (Code  of 
Civil  Procedure,  Sec.  1614).  That  is,  all  profits  made  from 
property  of  the  estate  belong  to  the  estate;  all  loss  occurr- 
ing without  fault  of  the  executrix  or  administratrix  falls 
upon  the  estate. 

As  soon  as  the  time  allowed  by  law  for  creditors  of 
the  estate  to  prevent  their  claim  has  expired,  all  debts  and 
taxes  are  paid,  the  estate  ready  to  be  closed,  and  the 
account  of  the  executrix  or  administratrix  is  settled,  all 
property  of  the  estate  is  ordered  by  court  to  be  distribut- 
ed to    the    persons    entitled    to    receive  it.      To    obtain 

49 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

such  order,  the  executrix  or  administratrix  presents  a 
petition  to  the  court.  Upon  the  settlement  of  her  account, 
she  will  be  allowed  as  compensation  for  her  services,  cer- 
tain percentages  of  the  value  of  the  state.  These  per- 
centages are  fixed  by  law. 

She  will  also  be  allowed  as  a  fee  for  her  attorney  cer- 
tain percentages  fixed  by  law,  of  the  value  of  the  estate. 

May  Act  as  Agent. 
A  married  woman  may  act  as  agent,  or   may  appoint 
an  agent.    Civil  Code,  Sec.  2296. 

Eight  to  Prevent  Certain  Actions  of  Husband  in  Regard  to 
Property. 

A  homestead  cannot  be  selected  from  a  married  woman's 
separate  estate  without  her  consent.     Civil  Code,  Sec.  1239. 

Husband  cannot  dispose  of  community  property  with- 
out wife's  consent,  unless  he  receive  a  valuable  considera- 
tion therefor.    Civil  Code,  Sec.  172. 

Protection  of  Personal  Rights. 

She  may  recover  d'amages  from  any  person  who  slanders 
or  libels  her.    Civil  Code,  Sees.  43-47. 

A  married  woman  has  a  right  to  prevent  the  abduction 
(taking  away)  of  her  husband  or  child  (Civil  Code,  Sec. 
49,  Sub.  1-2),  and  may  recover  damages  from  any  one  so 
abducting. 

She  may  recover  damages  from  any  one  who  alienates 
the  affections  of  her  husband,  Sec.  49,  Civil  Code,  as  con- 
strued by  the  supreme  court  in  the  case  of  Humphrey  v. 
Pope,  122  Cal.,  253. 

She  may  use  any  force  necessary  to  protect  from  wrong- 
ful injury  her  husband,  child,  parent,  or  other  relative,  or 
member  of  her  family,  or  her  ward,  servant,  master  or 
guest.    Civil  Code,  Sec.  50. 

Right  to  Bring  Action. 

A  married  woman  may  bring  or  defend  actions  or 
suits  relating  to  her  personal  rights,  or  to  her  personal 
property. 

If  the  action  concerns  her  separate  property,  or  her 
rights  or  claim  to  the  homestead  property,  she  may  sue 
alone.     Code  of  Civil  Procedure,  Sec.  370,  Sub.  1. 

50 


LAWS  RELATING  TO  WOMEN  AND  CHUJDBEtf 

When  the  action  is  between  herself  and  her  husband, 
she  may  sue  or  be  sued  alone. 

Code  of  Civil  Procedure,  Sec.  370,  Sub.  2. 

When  she  is  living  separate  and  apart  from  her  husband, 
by  reason  of  his  desertion  or  by  written  agreement  between 
them,  she  may  sue  or  be  sued  alone. 

Code  of  Civil  Procedure,  Sec.  370,  Sub.  3. 

As  to  other  actions,  the  laws  of  California  follow  the 
effete  barbarism  of  the  common  law  of  England,  by  re- 
quiring that  in  an  action  by  or  against  a  married  woman, 
her  husband  is   a  necessary  party. 

Code  of  Civil  Procedure,   Sec.  370. 

"If  a  husband  and  wife  be  sued  together,  the  wife  may 
defend,  for  her  own  right,  and  if  the  husband  neglect  to 
defend,  she  may  defend  for  his  right  also." 

Code  of  Civil  Procedure,  Sec.  371. 

"An  unmarried  female  may  prosecute,  as  plaintiff,  an 
action  for  her  own  seduction,  and  may  recover  therein 
such  damages  pecuniary,  or  exemplary  as  are  assessed  in 
her  favor."     Code  of  Civil  Procedure,  Sec.  374. 

A  widow  or  a  married  woman  deserted  by  her  husband, 
may  bring  an  action  for  the  seduction  of  her  daughter. 
Code  of  Civil  Procedure,  Sec.  375,  also  for  the  injury  or 
death  of  a  minor  child.  Code  of  Civil  Procedure,  Sec. 
376.  A  widow,  as  heir  of  her  husband,  may  bring  an  action 
for  damages  against  a  person  causing  the  death  of  her 
husband.  Code  of  Civil  Procedure,  Sec.  377. 
Sole  Traders. 

"A  married  woman  may  become  a  sole  trader  by  the 

judgment  of  the  superior  court  of  the  county  in  which  she 

has  resided  for  six  months  next  preceding  the  application." 

Code  of  Civil  Procedure,  Sec.  1811. 

Judgment  establishing  a  married  woman's  status  as  sole 
trader  is  made  upon  petition  to  the  superior  court,  and 
after  notice  given  as  prescribed  by  law.  Code  of  Civil 
Procedure,  Sees.  1811-1813;   1815-1818. 

Any  creditor  of  the  husband  may  oppose  the  applica- 
tion on  the  ground  that  the  statements  of  the  petition 
are  not  true,  or  that  the  application  is  made  to  defraud 
such  creditor  or  is  made  to  prevent,  or  will  prevent,  him 
from  collecting  his   debt. 

Code  of  Civil  Procedure,  Sec.  1815. 

51 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 


If  such  opposition  be  made,  the  court  will  hear  proof  of 
both  parties.  If  no  opposition  be  made,  the  court  will 
hear  applicants  proof,  and  in  either  case,  will  determine 
the  facts.    Code  of  Civil  Procedure,  Sec.  1816. 

If   the   court   be    satisfied   that   the   statements    of   the 

application  are  true,  it  will  give  judgment  authorizing  the 

applicant  to  carry  on  in  her  own  name,  and  on  her  own 

account,  the  business  specified  in  her  petition  and  notice. 

Code  of  Civil  Procedure,  Sec.  1817. 

The  sole  trader  must  make  and  file  with  the  clerk  of 
the  court  an  affidavit  in  a  form  prescribed  by  law,  its  sub- 
stance being  that  her  application  was  made  in  good  faith  to 
enable  her  to  support  herself  and  any  dependent,  such  as 
husband,  parent,  sister,  child  and  the  like,  and  not  with 
any  view  to  defraud,  delay,  or  hinder  any  creditor  or 
creditors  of  her  husband's;  and  that  of  the  money  to  be 
used  in  business,  not  more  than  five  hundred  dollars  have 
come  directly  or  indirectly  from  her  husband. 

Code  of  Civil  Procedure,  Sec.  1818. 

Rights  and  Liabilities  of  Sole  Trader. 

"When  the  judgment  is  made  and  entered,  and  a  copy 
thereof,  with  the  affidavit  provided  for  in  Section  eighteen 
hundred  and  eighteen,  duly  recorded,  the  person  therein 
named  is  entitled  to  carry  on  the  business  specified,  in  her 
own  name,  and  the  property,  revenues,  moneys,  and  credit 
so  by  her  invested  and  the  profits  thereof,  belong  ex- 
clusively to  her,  and  are  not  liable  for  any  debts  of  her 
husband;  and  she  thereafter  has  all  the  privileges  of  and 
is  liable  to  all  legal  processes  provided  for  debtors  and 
creditors  and  may  sue  and  be  sued  alone,  without  being 
joined  with  her  husband,  provided,  however,  that  she  shall 
not  be  at  liberty  to  carry  on  said  business  in  any  other 
county  than  that  named  in  the  notice  provided  for  in  sec- 
tion eighteen  hundred  and  twelve,  until  she  has  recorded 
in  such  other  county  a  copy  of  said  judgment  and  affi- 
davit."   Code  of  Civil  Procedure,  Sec.  1819. 

"A  married  woman  who  is  adjudged  a  sole  trader  is  re- 
sponsible and  liable  for  the  maintenance  of  her  minor 
children."     Code  of  Civil  Procedure,  Sec.  1820. 

Husband  Not  Liable  for  Debt. 
"The  husband  of  a  sole  trader  is  not  liable  for  any  debts 

52 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

contracted  by  her  in  the  course  of  her  sole  trader's  busi- 
ness, unless  contracted  upon  his  written  consent." 

Code  of  Civil  Procedure,  Sec.  1821. 

Privileged  Communications. 

"A  husband  cannot  be  examined  for  or  against  his  wife, 
without  her  consent,  nor  a  wife  for  or  against  her  hus- 
band, without  his  consent,  nor  can  either,  during  the  mar- 
riage or  afterwards,  be,  without  the  consent  of  the  other, 
examined  as  to  any  communication  made  by  one  to  the 
other  during  the  marriage,  but  this  exception  does  not 
apply  to  a  civil  action  or  proceding  by  one  against  the 
other,  nor  to  a  criminal  action  or  proceding  for  a  crime 
committed  by  one  against  the  other.' 

Code  of  Civil  Procedure,  Sec.  1881,  Sub.  1. 


TITLE  FIVE-PENAL  LAWS  RELATING 
TO  WOMEN 

By  Elizabeth  L.  Kenney 

Crimes  and  Punishments. 
Who  are  capable  of  committing  crimes. 
All    persons    are    capable   of    committing    crime    except 
those  belonging  to  the  following  classes: 

1.  Children  under  the  age  of  fourteen,  in  the  absence  of 
clear  proof  that  at  the  time  of  committing  the  act  charged 
against  them  they  knew  its  wrongfulness. 

2.  Idiots; 

3.  Lunatics  and  insane  persons; 

4.  Persons  who  committed  the  act  or  m-ade  the  omission 
charged  under  an  ignorance  or  mistake  of  fact,  which 
disproves  any  criminal  intent; 

5.  Persons  who  committed  the  act  charged  without 
being  conscious  thereof; 

6.  Persons  who  committed  the  act  or  made  the  omis- 
sion charged  through  misfortune  or  by  accident,  when  it 
appears  that  there  was  no  evil  design,  intention,  or  culp- 
able negligence; 

53 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 


7.  Married  women  (except  for  felonies)  acting  under 
the  threats,  command,  or  coercion  of  their  husbands; 

8.  Persons  (unless  the  crime  be  punishable  with  death) 
who  committed  the  act  or  made  the  omission  charged  under 
threats  or  menaces  sufficient  to  show  that  they  had  rea- 
sonable cause  to  and  did  believe  their  lives  would  be  en- 
dangered if  they  refused.    Penal  Code.  Sec.  26. 

Abduction  of  Women. 
Every  person  who  takes  any  woman  unlawfully,  against 
her  will,  and  by  force,  menace,  or  duress  compels  her  to 
marry  him,  or  to  marry  any  other  person,  or  to  be  denied, 
is  punishable  by  imprisonment  in  the  state  prison  not  less 
than  two  nor  more  than  fourteen  years. 

Penal  Code,  Sec.  265. 

Seduction  for  Purpose  of  Prostitution— Procuration. 
Every  person  who  inveigles  or  entices  any  unmarried 
female,  of  previous  chaste  character,  under  the  age  of 
eighteen  years,  into  any  house  of  ill-fame  or  of  assigna- 
tion, or  elsewhere  for  the  purpose  of  prostitution,  or  to 
have  illicit  carnal  connection  with  any  man;  and  every 
person  who  aids  or  assists  in  such  inveiglement  or  entice- 
ment; and  every  person  who,  by  any  false  pretenses,  false 
representation,  or  other  fraudulent  means,  procures  any 
female  to  have  illicit  carnal  connection  with  any  man — 
is  punishable  by  imprisonment  in  the  state  prison  not 
exceeding  five  years,  or  by  imprisonment  in  a  county  jail 
not  exceeding  one  year,  or  by  a  fine  not  exceeding  one 
thousand  dollars,  or  by  both  such  fine  and  imprisonment. — 
Penal  Code,  Sec.  266. 

Husband  and  Wife— When  Not  Competent  Witnesses. 
Neither  husband  nor  wife  is  a  competent  witness  for  or 
against  the  other  in  a  criminal  action  or  proceeding  to 
which  one  or  both  are  parties,  except  with  the  consent  of 
both,  or  in  cases  of  criminal  violence  upon  one  by  the 
other,  or  in  cases  of  criminal  actions  or  proceedings 
brought  under  the  provisions  of  Section  270  of  this  Code, 
or  in  cases  of  criminal  actions  or  proceedings  for  bigamy. 

Penal  Code,  Sec.   1322. 

Bigamy  Defined. 
Every  person  having  a  husband  or  wife  living,  who  mar- 

54 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

ries  any  other  person,  except  in  the  cases  specified  in  the 
next  section,  is  guilty  of  bigamy.    Penal  Code,  Sec.  281. 

Exceptions. 
The  last  section  does  not  extend: 

1.  To  any  person,  by  reason  of  any  former  marriage, 
whose  husband  or  wife  by  such  marriage  has  been  absent 
for  five  successive  years  without  being  known  to  such  per- 
son within  that  time  to  be  living;  nor, 

2.  To  any  person  by  reason  of  any  former  marriage 
which  has  been  pronounced  void,  annulled,  or  dissolved 
by  the  judgment  of  a  competent  court. 

Penal  Code.  Sec.  282. 

(Bigamy,  punishment  of.)  Bigamy  is  punishable  by 
fine  not  exceeding  five  thousand  dollars  amd  by  imprison- 
ment in  the  state  prison  not  exceeding  ten  year. 

Penal  Code,  Sec.  283. 

(Marrying  a  husband  or  wife  of  another,  punishment.) 
Every  person  who  knowingly  and  wilfully  marries  the  hus- 
band or  wife  of  another,  in  any  case  in  which  such  husband 
or  wife  would  be  punishable  under  the  provisions  of  this 
chapter,  is  punishable  by  fine  not  less  than  five  thousand 
'dollars,  or  by  imprisonment  in  the  state  prison  not  ex- 
ceeding ten  years.      Penal  Code,  Sec.  284. 

Incest. 
Persons  being  within  the  degrees  of  consanguinity  with- 
in which  marriages  are  declared  by  law  to  be  incestuous 
and  void,  who  intermarry  with  each  other,  or  who  commit 
fornication  or  adultery  with  each  other,  are  punishable  by 
imprisonment  in  the  state  prison  not  exceeding  ten  years. 

Penal  Code,  Sec.  285. 

Keeping  Disorderly  Houses. 
Every  person  who  keeps  any  disorderly  house,  or  any 
house  for  the  purpose  of  assignation  or  prostitution,  or  any 
house  of  public  resort,  by  which  the  peace,  comfort,  or 
decency  of  the  immediate  neighborhood  is  habitually  'dis- 
turbed, or  who  keeps  any  inn  in  a  disorderly  manner;  and 
every  person  who  lets  any  apartment  or  tenement,  know- 
ing that  it  is  to  be  used  for  the  purpose  of  assignation  or 
prostitution,  is  guilty  of  a  misdemeanor. 

Penal  Code,  Sec.  316 

55 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

Contracting  or  Solemnizing  Incestuous   or  Forbidden  Mar- 
riages. 

Every  person  authorized  to  solemnize  marriage,  who 
wilfully  and  knowingly  solemnizes  any  incestuous  or  other 
marriage  forbidden  by  law,  is  punishable  by  fine  of  not 
less  than  one  hundred  nor  more  than  one  thousand  dollars, 
or  by  imprisonment  in  the  county  jail  not  less  than  three 
months  nor  more  than  one  year,  or  by  both. 

Penal  Code,Sec.  359. 

Making  False  Return  or  Record  of  Marriage. 

Every  person  authorized  to  solemnize  any  marriage,  who 
solemnizes  such  marriage  without  first  being  presented 
with  the  marriage  license,  as  required  by  Section  72  of 
the  Civil  Code  of  this  state,  or  who  wilfully  makes  a  false 
return  of  any  marriage  or  pretended  marriage  to  the  Re- 
corder; or  who,  having  solemnized  a  marriage,  fails  for 
more  than  thirty  days,  to  file  with  such  recorder  the  mar- 
riage license  with  the  certificate  endorsed  thereon,  as  re- 
quired by  Sections  73  and  74  of  the  Civil  Code  of  this 
state;  and  every  person  who  wilfully  makes  a  false  record 
of  any  marriage  return,  is  punishable  as  provided  in  the 
preceding  section.  Penal  Code,  Sec.  360. 

Marrying  Under  False  Personation. 

Every  person  who  falsely  personates  another,  and  in  such 
assumed  character  marries  or  pretends  to  marry,  or  to 
sustain  the  marriage  relation  towards  another,  with  oi 
without  the  connivance  of  such  other,  is  guilty  of  a  felony 

Penal  Code,  Sec.  528. 

Administering  Drugs,  etc.,  With  Intent  to  Produce  Miscar- 
riage. 
Every  person  who  provides,  supplies,  or  administers 
to  any  pregnant  woman,  or  procures  any  such  woman  to 
take  any  medicine  drug,  or  substance,  or  uses  or  employs 
any  instrument  or  other  means  whatever,  with  intent  there- 
by to  procure  the  miscarriage  of  such  woman,  unless  the 
same  is  necessary  to  preserve  her  life,  is  punishable  by  im- 
prisonment in  the  state  prison  not  less  than  two  nor  more 
than   five  years.    Penal  Code,   Sec.   274. 

56 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

Submitting  to  an  Attempt  to  Produce  Miscarriage. 

Every  woman  who  solicits  of  an  person  any  medicine, 
drug,  or  substance  whatever,  and  takes  the  same,  or  who 
submits  to  any  operation,  or  to  the  use  of  any  means 
whatever,  with  intent  thereby  to  procure  a  miscarriage, 
unless  the  same  is  necessary  to  preserve  her  life,  is  punish- 
able by  imprisonment  in  the  state  prison  not  less  than 
one  nor  more  than  five  years.      Penal  Code,  Sec.  275. 

Writing  or  Publishing  Notices  of  Means  to  Procure  Abortion 
or  Miscarriage. 
Every  person  who  wilfully  writes,  composes,  or  publishes 
any  notice  or  advertisement  of  any  medicine  or  means  for 
producing  or  facilitating  a  miscarriage  or  abortion,  or  for 
the  prevention  of  conception,  or  who  offers  his  services 
by  any  notice,  advertisement,  or  otherwise,  to  assist  in 
the  accomplishment  of  any  such  purpose,  is  guilty  of  a 
felony.      Penal  Code,  Sec.  317. 

Rape. 

Rape  is  an  act  of  sexual  intercourse,  accomplished  with 
a  female  not  the  wife  of  the  perpetrator,  under  either  of 
the  following  circumstances: 

1.  Where  the  female  is  under  the  age  of  sixteen  years: 

2.  Where  she  is  incapable,  through  lunacy  or  other  un- 
soundness of  mind,  whether  temporary  or  permanent,  of 
giving  legal  consent: 

3.  Where  she  resists,  but  her  resistance  is  overcome  by 
force  or  violence; 

4.  Where  she  is  prevented  from  resisting  by  threats  of 
great  and  immediate  bodily  harm,,  accompanied  by  apparent 
power  of  execution,  or  by  any  intoxicating  narcotic,  or 
anaesthetic  substance,  administered  by  or  with  the  privity 
of  the  accused; 

5.  Where  she  is  at  the  time  unconscious  of  the  nature 
of  the  act,  and  this  is  known  to  the  accused; 

6.  Where  she  submits  under  the  belief  that  the  person 
committing  the  act  is  her  husband,  and  this  belief  is  in- 
duced by  any  artifice,  pretense,  or  concealment  practiced 
by  the  accused,  with  intent  to  induce  such  belief. 

Penal  Code,  Sec.  261. 

57 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 


Punishment  of  Rape. 
Sec.  264.    Rape  is  punishable  by  imprisonment  in  the 
state  prison  not  less  than  five  years.    Penal  Code,  Sec.  264. 

When  Physical  Ability  Must  be  Proved. 
No  conviction  for  rape  can  be  had  against  one  who  was 
under  the  age  of  fourteen  years  at  the  time  of  the  act  al- 
leged, unless  his  physical  ability  to  accomplish  penetra- 
tion is  proved  as  an  independent  fact,  and  beyond  a  reason- 
able doubt.    Penal  Code,  Sec.  262. 

Penetration  Sufficient. 

The  essential  guilt  of  rape  consists  in  the  outrage  to  the 
person  and  feelings  of  the  female.  Any  sexual  penetration, 
however  slight,  is  sufficient  to  complete  tne  crime. 

Penal  Code,  Sec.  263. 
OTHER  OFFENSES 

Every  person  who  knowingly  and  wilfully  marries  the 
husband  or  wife  of  another,  in  any  case  in  which  such 
husband  or  wife  would  be  punishable  under  the  provisions 
of  this  chapter,  is  punishable  by  fine  not  less  than  five  thou- 
sand dollars,  or  by  imprisonment  in  the  state  prison  not 
exceeding  ten  years.     Penal  Code,  Sec.  284. 

Every  person  who  keeps  a  house  of  ill-fame  in  this  state 
resorted  to  for  the  purposes  of  prostitution  or  lewdness,  or 
who  wilfully  resides  in  such  house,  is  guilty  of  a  misde- 
meanor; and  in  all  prosecutions  for  keeping  or  resorting 
to  such  a  house  common  repute  may  be  received  as  compe- 
tent evidence  of  the  character  of  the  house,  the  purpose 
for  which  it  is  kept  or  used,  and  the  character  of  the 
women  inhabiting  or  resorting  to  it.      Penal  Code,  315. 

Every  parent,  guardian,  or  other  person  who  upbraids, 
insults,  or  abuses  any  teacher  of  the  public  schools,  in  the 
presence  or  hearing  of  a  pupil  thereof,  is  guilty  of  a 
misdemeanor.      Penal  Code,  Sec.  653b. 

Every  person  who  sells  any  female  person,  or  receives 
any  money  or  other  valuable  thing  for  or  on  account  of 
his  placing  in  custody,  for  immoral  purposes,  any  female 
person,  whether  with  or  without  her  consent,  is  guilty  of 
a  felony.  Penal  Code,  Sec.  266f 

Every  man  who  by  force,  intimidation,  threats,  persua- 
sion, promises,  or  any  other  means,  places  or  leaves,  or 

58 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

procures  any  other  person  or  persons  to  place  or  leave, 
his  wife  in  a  house  of  prostitution,  or  connives  at  or  con- 
sents to,  or  permits,  the  placing  or  leaving  of  his  wife 
in  a  house  of  prostitution,  or  allows  or  permits  her  to 
remain  therein,  is  guilty  of  a  felony  and  punishable  by 
imprisonment  in  the  state  prison  for  not  less  than  three 
nor  more  than  ten  years;  and  in  all  prosecutions  under 
this  section  a  wife  is  a  competent  witness  against  her 
husband.  Penal   Code,   Sec.   266g. 

Every  person  who  lives  in  a  state  of  open  and  notor- 
ious cohabitation  and  adultery  is  guilty  of  a  misdemeanor, 
and  punishable  by  a  fine  not  exceeding  one  thousand  dol- 
lars, or  by  imprisonment  in  the  county  jail  not  exceeding 
one  year  or  by  both.  Penal  Code,   Sec.  269a. 

If  two  persons,  each  being  married  to  another,  live  to- 
gether in  a  state  of  open  and  notorious  cohabitation  and 
adultery,  each  is  guilty  of  a  felony,  and  punishable  by 
imprisonment  in  the  state  prison  not  exceeding  five  years. 
A  recorded  certificate  of  marriage  or  a  certified  copy 
thereof,  there  being  no  decree  of  divorce,  proves  the  mar- 
riage of  a  person  for  the  purposes  of  this  section. 

Penal  Code,  Sec.  269b. 
Every  person  who  within  this  state,  takes  any  female 
person  against  her  will,  and  without  her  consent,  or  with 
her  consent  procured  by  fraudulent  inducement,  or  mis- 
representation for  the  purpose  of  prostitution,  is  punish- 
able by  imprisonment  in  the  state  prison  not  exceeding 
five  years,  and  a  fine  not  exceeding  one  thousand  dol- 
lars. Penal  Code,  Sec.  266a. 
Every  person  who  takes  any  female  person  unlawfully, 
and  against  her  will,  and  by  force,  menace  or  duress, 
compels  her  to  live  with  him  in  an  illicit  relation,  against 
her  consent,  or  to  so  live  with  any  other  person,  is  pun- 
ishable by  imprisonment  in  the  state  prison  not  less  than 
two,  nor  more  than  four  years.  Penal  Code,  Sec.  266b. 
Every  person  bringing  to,  or  landing  within  this  state, 
any  female  person  born  in  the  empire  of  China  or  the 
empire  of  Japan,  or  the  islands  adjacent  thereto,  with 
intent  to  place  her  in  charge  or  custody  of  any  other  per- 
son, and  against  her  will  to  compel  her  to  reside  with 
him,  or  for  the  purpose  of  selling  her  to  any  person  whom- 

59 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

soever,  is  punishable  by  a  fine  of  not  less  than  one  nor 
more  than  five  thousand  dollars,  or  by  imprisonment  in 
the  county  jail  not  less  than  six  nor  more  than  twelve 
months.  Penal  Code,  Sec.  266c. 

Any  person  who  receives  any  money  or  other  valuable 
thing  for  or  on  account  of  his  placing  in  custody  any  fe- 
male for  the  purpose  of  causing  her  to  cohabit  with  any 
male  to  whom  she  is  not     married,  is  guilty  of  a  felony. 

Penal  Code,  Sec.  266d. 

Every  person  who  purchases,  or  pays  any  money  or 
valuable  thing  for,  any  female  person  for  the  purpose  of 
prostitution,  or  for  the  purpose  of  placing  her,  for  immoral 
purposes,  in  nany  house  or  place  against  her  will,  is  guilty 
of  a  felony.  Penal  Code,   Sec.  266e. 


60 


PART  TWO 

Laws  Relating  to  Children 

By  Willoughby  Rodman 


TITLE  ONE-STATUS,  RIGHTS  AND 
OBLIGATIONS 

CHAPTER  I. 

Status  of  Child,  and  Legitimacy. 
"All  children  born  in  wedlock  are  presumed  to  be  le- 
gitimate." Civil  Code,  Sec.  193. 
"All  children  of  a  woman  who  has  been  married,  born 
within  ten  months  after  the  dissolution  of  the  marriage, 
are  presumed  to  be  legitimate  children  of  that  marriage." 

Civil  Code,  Sec.  194. 
"A  child  born  before  wedlock  becomes  legitimate  by  the 
subsequent  marriage  of  the  parents." 

Civil  Code,   Sec.   215. 

"The   presumption   of  legitimacy   can   be   disputed   only 

by  (1)   husband  or  (2)  wife,  or  (3)   the  descendant  of  one 

or  both  of  them.     Illegitimacy,     in  such     case,     may     be 

proved  like  any  other  fact."  Civil  Code,  Sec.  195. 


CHAPTER  II. 


Eights  of  Children  and  Obligation  of  Parents. 

"The  parent  entitled  to  the  custody  of  a  child  must 
give  him  support  and  education  suitable  to  his  circum- 
stances. If  the  support  and  education  which  the  father  of 
a  legitimate  child  is  able  to  give  are  inadequate,  thd 
mother  must  assist  him  to  the  extent  of  her  a.hilitw- 

Civil  Code,  Sec.  196. 

"If  a  parent  chargeable  with  the  support  of  a  child 
dies,  (1)  leaving  it  chargeable  to  the  county,  and  (2)  leav- 
ing an  estate  sufficient  for  its  support,  the  supervisors  of 
the  county  may  claim  provision  for  its  support  from  the 

61 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

parent's  estate  by  civil  action,  and  for  this  purpose  may 
have  the  same  remedies  as  any  creditors  against  that 
estate,  and  against  the  heirs,  devisees,  and  next  of  kin 
of  the  parent."  Civil  Code,  Sec.  205. 

"It  is  the  duty  of  the  (1)  father,  the  (2)  mother,  and 
the  (3)  children  of  any  poor  person  who  is  unable  to  main- 
tain himself  by  work,  to  maintain  such  person  to  the  ex- 
tent of  their  ability.  The  promise  of  an  adult  child  to 
pay  for  necessaries  previously  furnished  to  such  parent 
is  binding."  Civil  Code,  Sec.  206. 

"If  a  parent  neglects  to  provide  articles  necessary  for 
his  child  who  is  under  his  charge,  according  to  his  cir- 
cumstances, a  third  person  may  in  good  faith  supply  such 
necessaries,  and  recover  the  reasonable  value  thereof 
from  the  parent."  Civil  Code,  Sec.  207. 

"A  parent  is  not  bound  to  compensate  (1)  the  other 
parent,  or  (2)  a  relative,  for  the  voluntary  support  of 
his  child,  without  an  agreement  for  compensation,  nor 
(3)  to  compensate  a  stranger  for  the  support  of  a  child 
who  has  abandoned  the  parent  without  just  cause." 

Civil  Code,  Sec.  208. 


CHAPTER  HI. 


Custody  of  Children. 

"A  parent  entitled  to  the  custody  of  a  child  has  a  right 
to  change  his  residence,  subject  to  the  power  of  the 
proper  court  to  restrain  a  removal  which  would  prejudice 
the  rights  or  welfare  of  the  child."       Civil  Code,  Sec.  213. 

"The  father  of  a  legitimate  unmarried  minor  child  is 
entitled  to  its  custody,  services  and  earnings;  but  he 
cannot  transfer  such  custody  or  services  to  any  other 
person,  except  the  mother,  without  her  written  consent, 
unless  she  has  deserted  him,  or  is  living  separate  from 
him  by  agreement.  If  the  father  (1)  be  dead,  or  (2)  be 
unable;  or  (3)  refuse  to  take  the  custody;  or  (4)  has 
abandoned  his  family,  the  mother  is  entitled  thereto." 

Civil  Code,  Sec.  197. 

"The  parent,  whether  solvent  or  insolvent,  may  relin- 
quish to  the  child  the  right  of  controlling  him   and  re- 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

ceiving  his  earnings.       Abandonment     by  the   parent   is 
presumptive  evidence  of  such  relinquishment." 

Civil  Code,  tSec.  211. 

"The  wages  of  a  minor  employed  in  service  may  be 
paid  to  him,  until  the  parent  or  guardian  entitled  thereto 
gives  the  employer  notice  that  he  claims  such  wages." 

Civil  Code,  Sec.  212. 

"The  husband  and  father,  as  such,  has  no  rights  su- 
perior to  those  of  the  wife  and  mother,  in  regard  to  the 
care,  custody,  education,  and  control  of  the  children  of 
the  marriage,  while  such  husband  and  wife  live  separate 
and  apart  from  each  other."  Civil  Code,  Sec.  198. 

"When  a  husband  and  wife  live  in  a  state  or  separation, 
without  being  divorced,  any  court  of  competent  jurisdic- 
tion, upon  application  of  either,  if  an  inhabitant  of  this 
state,  may  inquire  into  the  custody  of  any  unmarried 
minor  child  of  the  marriage,  and  may  award  the  custody 
of  such  child  to  either,  for  such  time  and  under  such 
regulations  as  the  case  may  require.  The  decision  of 
the  court  must  be  guided  by  the  rules  prescribed  in  sec- 
tion two  hundred  and  forty-six."  Civil  Code,  Sec.  214. 

"The  mother  of  an  illegitimate  unmarried  minor 
is  entitled  to  its  custody,  services  and  earnings." 

Civil  Code,  Sec.  200. 

Control  as  Between  Husband  and  Wife. 

"Without  application  for  a  divorce,  the  husband  or  the 
wife  may  bring  an  action  for  the  exclusive  control  of 
the  children  of  the  marriage;  and  the  court  may,  (1) 
during  the  pendency  of  such  action,  or  (2)  at  the  final 
hearing  thereof,  or  (3)  afterwards,  make  such  order  or 
decree  in  regard  to  the  support,  care,  custody,  education 
and  control  of  the  children  of  the  marriage,  as  may  be 
just,  and  in  accordance  with  the  natural  rights  of  the 
parents  and  the  best  interests  of  the  children,  and  may 
(4)  at  any  time  thereafter  amend,  vary,  or  modify  such 
order  or  decree,  as  the  natural  rights  and  the  interests 
of  the  parties,  including  the  children,  may  require." 

Civil  Code,   Sec.  199. 
Rights  of  Child. 

"The  parent,  as  such,  has  no  control  over  the  property 
of  the  child."  Civil  Code,  Sec.  202. 

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LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

"The  abuse  of  parental  authority  is  the  subject  of  ju- 
dicial cognizance  in  a  civil  action  brought  (1)  by  the 
child,  or  (2)  by  its  relative  within  the  third  degree,  or 
(3)  by  the  supervisors  of  the  county  where  the  child 
resides;  and  when  the  abuse  is  established,  the  child  may 
be  freed  from  the  dominion  of  the  parent,  and  the  duty 
of  support  and  education  enforced."        Civil  Code,  Sec.  203. 


CHAPTER  IV. 


Reciprocal  Rights  of  Parent  and  Child. 
"It  is  the  duty  of  the  (1)  father,  the  (2)  mother,  and 
the  (3)  children  of  any  poor  person  who  is  unable  to 
maintain  himself  by  work,  to  maintain  such  person  to 
the  extent  of  their  ability.  The  promise  of  an  adult  child 
to  pay  for  necessaries  previously  furnished  to  such  parent 
is  binding."  Civil  Code,  Sec.  206. 


CHAPTER  V. 


Guardianship. 
As  to  powers  and  duties  of  guardians,  see  P.      ante. 


CHAPTER  VI. 


Adoption. 

Besides  children  by  nature,  the  laws  of  California  re- 
cognize children  by  adoption. 

Any  minor  may  be  adopted  by  any  adult  person  who  is 
ten  years  older  than  the  minor.     Civil  Code,  Sections  221-222. 

A  married  person  cannot  adopt  a  child  without  the  con- 
sent of  his  or  her  spouse,  if  the  spouses  be  living  together 
and   the   non-consenting  party  be  capable   of  consenting. 

Civil  Code,  Sec.  225. 

"A  legitimate  child  cannot  be  adopted  without  the  con- 
sent of  its  parents,  if  living;  nor  an  illegitimate  child  with- 
out the  consent  of  its  mother,  if  living;  except  that  consent 

64 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

is  not  necessary  from  a  father  or  mother  (1)  deprived  of 
civil  rights,  or  (2)  adjudged  guilty  of  (a)  adultery  or 
cruelty,  and  (b)  for  either  cause  divorced,  or  (3)  adjudged 
to  be  habitually  intemperate  in  the  use  of  intoxicants,  or 
who  (4)  has  been  judicially  deprived  of  the  custody  of  the 
child  on  account  of  (a)  cruelty  or  (b)  neglect;  (Abandoned 
child),  neither  is  the  consent  of  any  one  necessary  in 
the  case  of  any  abandoned  child;  provided,  however,  that 
any  such  child,  being  a  half-orphan,  and  kept  and  main- 
tained at  any  orphan  asylum  in  this  state  for  more  than 
two  years,  may  be  adopted  with  the  consent  of  the  man- 
agers of  such  orphans'  home  without  the  consent  of  the 
parent  unless  such  parent  has  paid  toward  the  expenses 
of  maintenance  of  such  half-orphan  at  least  a  reasonable 
sum  during  the  said  time,  if  able  to  do  so.  (Deserted 
child.)  Any  child  (1)  deserted  by  both  parents,  or  (2)  left 
in  the  care  and  custody  of  another  by  its  parent  or  parents, 
(a)  without  any  agreement  or  provision  for  its  support,  (b) 
for  the  period  of  one  year,  is  deemed  to  be  an  abandoned 
child  within  the  meaning  of  this  section,  and  where  the 
parent  is  a  non-resident  of  this  state  such  child  may  with- 
out the  consent  of  either  parent  be  adopted  with  the  con- 
sent of  the  managers  of  such  home  whenever  it  has  been 
left  in  such  home  for  more  than  one  year.' 

Civil  Code,  Sec.  224. 

"The  consent  of  a  child,  if  over  the  age  of  twelve  years, 
is  necessary  to  its  adoption."      Civil  Code,  Sec.  225. 

"Any  person  desiring  to  adopt  a  child  may,  for  that  pur- 
pose, petition  the  superior  court  of  the  county  in  which  the 
petitioner  resides'.  The  (1)  person  adopting  a  child,  and 
(2)  the  child  adopted,  and  (3)  the  other  persons,  if  within 
or  residents  of  this  state,  whose  consent  is  necessary, 
must  appear  before  the  court,  and  the  necessary  consent 
must  thereupon  be  signed,  and  (5)  an  agreement  executed 
by  the  person  adopting,  to  the  effect  that  the  child  shall 
be  adopted  and  treated  in  all  respects  as  his  own  lawful 
child  should  be  treated.  If  the  persons  whose  consent  is 
necessary  are  not  within  or  are  not  residents  of  this  state, 
then  (6)  their  written  consent,  duly  proved  or  acknowledg- 
ed according  to  sections  eleven  hundred  and  eighty-two 
and  eleven  hundred  and  eighty-three,  (7)  must  be  filed  in 

65 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

said    superior    court   at   the   time   of   the   application   for 
adoption.' »  Civil  Code,  Sec.  226. 

"The  court  must  (1)  examine  all  persons  appearing  be- 
fore it  pursuant  to  the  last  section,  each  separately,  and  if 
satisfied  that  the  interests  of  the  child  will  be  promoted  by 
the  adoption,  it  must  (2)  make  an  order  declaring  that  the 
child  shall  thenceforth  be  regarded  and  treated  in  all 
respects  as  the  child  of  the  person  adopting.  The  petition, 
agreement,  consent  and  order  must  be  filed  and  registered 
in  the  office  of  the  county  clerk  in  the  same  manner  as 
papers   in  other  special   proceedings." 

Civil  Code,  Sec.  227. 

"A  child,  when  adopted,  may  take  the  family  name  of 
the  person  adopting.  After  adoption,  the  two  shall  sustain 
towards  each  other  the  legal  relation  of  parent  and  child, 
and  have  all  the  rights  and  be  subject  to  all  the  duties  of 
that  relation."    Civil  Code,  Sec.  228. 

"The  parents  of  an  adopted  child  are,  from  the  time  of 
the  adoption,  relieved  of  all  parental  duties  towards,  and 
all  responsibility  for,  the  child  so  adopted,  and  have  no 
right  over  it."  Civil  Code,  Sec.  229. 

"The  father  of  an  illegitimate  child,  by  (1)  publicly 
acknowledging  it  as  his  own,  (2)  receiving  it  as  such,  (3) 
with  the  consent  of  his  wife,  if  he  is  married,  (4)  into  his 
family,  and  (5)  otherwise  treating  it  as  if  it  were  a  legiti- 
mate child,  thereby  adopts  it  as  such;  and  such  child  is 
thereupon  deemed  for  all  purposes  legitimate  from  the 
time  of  its  birth.  The  foregoing  provisions  of  this  chap- 
ter do  not  apply  to  such  an  adoption." 

Civil  Code,  Sec.  230. 


CHAPTER  VII. 

Minor  Child  As  Apprentice. 

"Every  minor  of  the  age  of  fourteen  years  or  upwards 
m,ay  be  bound  by  indenture  as  an  apprentice  to  any  me- 
chanical trade  or  art  or  the  occupation  of  farming  to  the 
age  of  eighteen  years,  if  a  female,  or  to  the  age  of  twenty- 
one  years,  if  a  male."     Civil  Code,  Sec.  264. 

"A  minor,  with  his  consent,  may  be  bound  (1)  by  his 
father,  or,  in  case  of  his  (a)  death  or  (b)  incompetency,  or 

66 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

where  he  has  (c)  wilfully  abandoned  his  family  for  one  year 
without  making  suitable  provision  for  their  support,  or  (d) 
is  habitually  intemperate  in  the  use  of  intoxicants,  or  (e) 
is  a  vagrant,  then  by  (2)  his  mother  or  (3)  legal  guardian. 
An  (4)  executor,  who  by  the  will  of  the  father,  is  directed  to 
bring  up  a  child  to  a  trade  or  calling,  has  power  to  bind 
him  by  indenture  in  like  manner  as  the  father  might  have 
done,  if  living.  If  a  child  is  illegitimate,  the  mother  alone 
has  power  to  bind  him.  If  a  minor  has  no  parent  or  guard- 
ian competent  to  act  for  him,  he  may  bind  himself,  with  the 
approval  of  the  superior  court  of  the  county  wherein  he  re- 
sides. (Mother  marrying).  If  the  mother  of  a  minor, 
whether  legitimate,  or  illegitimate,  marries  after  his  birth, 
she  cannot  bind  him  without  the  approval  of  such  super- 
ior court.'    Civil  Code,  Sec.  265. 

"Every  indenture  of  apprenticeship  (1)  must  be  exe- 
cuted in  duplicate,  (2)  must  state  the  age  of  the  minor, 
and,  except  as  hereinafter  provided,  (3)  must  show  that  he 
consented  thereto,  (4)  must  be  signed  by  him  and  the  per- 
son binding  and  the  master,  and  when  made  with  the  ap- 
proval of  the  superior  court,  (5)  a  certified  copy  of  the 
order  of  approval  must  be  attached  to  the  indenture.  One 
copy  of  the  indenture  (6)  must  be  delivered  to  the  master 
and  (7)  the  other  kept  for  the  use  of  the  minor  by  his  par- 
ent or  guardian  when  executed  by  him,  or,  when  made  with 
the  approval  of  the  court,  (8)  it  must  be  filed  and  deposited 
with  the  clerk  for  safekeeping  for  the  use  of  the  minor. 
No  indenture  binds  the  minor  after  the  death  of  the  mas- 
ter, but  thereafter  the  minor  may  be  bound  anew.  Every 
indenture  entered  into  otherwise  than  as  herein  provided 
is,  as  against  the  apprentice,  absolutely  void." 

Civil   Code,    Sec.    266. 

If,  in  his  will,  a  parent  direct  his  executor  to  bring 
up  his  child  to  some  trade  or  calling,  the  executor  may  bind 
such  child  as  clerk  or  apprentice  in  the  same  manner  as 
the  father  might  have  done.  If  the  mother  be  living,  her 
consent  is  necessary. 

"When  a  minor  is  poor,  homeless,  chargeable  to  the 
county  or  state,  or  an  outcast,  who  has  no  visible  means 
of  obtaining  an  honest  livelihood,  the  superior  court  may, 
with  his  consent,  bind  him  as  an  apprentice  during  his 
minority.    Proceedings  therefor  may  be  instituted  by  any 

67 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

citizen,  and  no  fee  must  be  charged  by  any  officer  for 
any  act  in  connection  therewith.  In  all  indentures  by 
the  court  for  binding  out  an  orphan  or  homeless  minor 
as  an  apprentice  there  must  be  inserted,  among  other 
things,  (1)  a  clause  to  the  following  effect:  that  the  master 
to  whom  such  minor  is  bound  must  cause  him  to  be  taught 
to  read  and  write  and  the  ground  rules  of  arithmetic, 
ratio  and  proportion,  and  must  give  him  the  requisite  in- 
struction in  the  different  branches  of  his  trade  or  calling, 
and,  (2)  at  the  expiration  of  his  term  of  service,  must  give 
him  or  her  fifty  dollars  in  gold,  and  (3)  two  whole  new 
suits  of  clothes,  to  be  worth  in  the  aggregate  at  least 
sixty  dollars  gold."    Civil  Code,  Sec.  263. 

"A  master  must  not  remove  his  apprentice  out  of  the 
state,  and  must  pay  and  deliver  to  him  the  money,  clothes 
and  other  property  to  which  he  is  entitled  under  the  indent- 
ure of  apprenticeship,  to  be  held  by  him  as  his  sole  prop- 
erty."    Civil  Code,  Sec.  269. 

"Parents  and  guardians  and  such  court  must,  from  time 
to  time,  inquire  into  the  treatment  of  children,  bound  by 
them  respectively,  or  with  their  approval,  and  the  judges 
of  such  courts  are  responsible  for  the  charge  of  apprent- 
ices bound  by  a  court  or  with  its  approval,  and  must  de- 
fend them  from  all  cruelty,  neglect,  breach  of  contract,  or 
misconduct  on  the  part  of  their  masters." 

Civil  Code,  Sec.  270. 

"The  superior  court  must  hear  the  complaints  of  appren- 
tices who  reside  within  the  county  against  their  masters, 
alleging  (1)  undeserved  or  immoderate  correction,  (2)  in- 
sufficient allowance  of  food,  raiment  or  lodging,  (3)  want 
of  instruction  in  the  different  branches  of  their  trade  or 
calling,  or  (4)  that  they  are  in  danger  of  being  removed 
out  of  the  state,  or  (5)  any  violation  of  the  indenture  of 
apprenticeship,  and  the  court  must  hear  and  determine  such 
case  and  make  such  order  therein  as  will  relieve  the 
party  in  the  future."  Civil  Code,  Sec.  271. 

"The  superior  court  has  power,  where  circumstances 
require  it,  (1)  to  discharge  an  apprentice  from  his  appren- 
ticeship, and,  in  case  any  money  or  other  thing  has  been 
paid  or  contracted  to  be  paid  by  either  party  in  relation 
to  the  apprenticeship,  the  court  must  (2)  make  such  order 
concerning   the   same   as    seems   just   and   reasonable.    If 

68 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 


the  apprentice  so  discharged  was  originally  bound  by  the 
superior  court,  it  must,  if  found  necessary,  again  bind  such 
minor,   if   under   age. "      Civil   Code,   Sec.   272. 

"Every  master  is  liable  to  an  action  on  the  indenture 
for  a  breach  of  any  covenant  thereof  on  his  part.  All  dam- 
ages recovered  in  such  action,  after  deducting  necessary- 
charges  in  its  prosecution,  belong  to  the  minor,  and  must 
be  applied  and  appropriated  to  his  use  by  the  person  re- 
covering it  in  his  behalf,  and  must  be  paid  to  the  minor,  if 
a  male,  at  the  age  of  twenty-one  years,  and  if  a  female, 
at  the  age  of  eighteen  years.  If  no  action  is  brought  dur- 
ing the  minority  of  the  apprentice,  it  may  be  commenced  by 
being  in  his  own  name  at  any  time  within  two  years  after 
his  coming  of  age."  Civil  Code,  Secfl  273. 

"An  apprentice  who  is  guilty  of  (1)  any  gross  misbe- 
havior, or,  (2)  refusal  to  do  his  duty,  or  (3)  wilful  neglect 
thereof,  is  liable  to  the  complaint  of  his  master  in  the  su- 
perior court  of  the  county  wherein  the  apprentice  resides. 
Such  complaint  must  (4)  set  forth  the  circumstances  of  the 
case,  and  (5)  have  attached  thereto  a  citation,  signed  by 
the  clerk  of  the  court,  requiring  him  and  all  persons  who 
have  covenanted  in  his  behalf  to  appear  and  answer  the 
complaint  within  ten  days  after  the  service  thereof.  The 
complaint  and  citation  must  be  served  in  the  manner  re- 
quired for  serving  civil  process.  When  the  parties  have 
answered,  or  when,  though  they  have  not  answered,  the 
time  therefor  allowed  after  the  service  of  the  complaint 
has  expired,  the  court  must  proceed  to  hear  and  determine 
the  cause,  and,  if  the  evidence  warrants  it,  may  render 
judgment  that  the  master  be  discharged  from  the  contract 
of  apprenticeship  and  for  costs  of  suit.  Such  costs  may 
be  recovered  from  the  parent  or  guardian  of  the  minor,  if 
there  is  any  who  signed  the  indenture,  and  execution  there- 
for may  issue  accordingly.  If  there  is  no  parent  or  guard- 
ian liable  for  such  cost,  execution  may  be  issued  therefor 
against  the  minor,  or  the  amount  thereof  may  be  recovered 
in  an  action  against  him  after  he  arrives  at  full  age.  He 
is  also  liable  to  the  master  in  an  action  on  the  indenture 
for  the  breach  of  any  covenant  on  the  part  of  the  appren- 
tice contained  therein,  committed  before  the  master  was 
discharged   from  the  indenture."    Civil   Code,   Sec.   274. 

"It  is   unlawful  for  any  person    (1)    to   entice,   counsel 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

or  persuade  to  run  away  any  apprentice,  or  (2)  to  harbor 
or  conceal  him,  knowing  him  to  be  a  runaway.  Any  party 
so  offending  is  guilty  of  misdemeanor,  and  may  be 
fined  not  more  than  one  hundred  dollars,  to  be  recovered 
by  the  master  in  any  court  having  jurisdiction." 

Civil  Code,  Sec.  275. 
"Whenever  any  master  wishes  (1)  to  remove  out  of  the 
state,  or  (2)  to  quit  his  trade  or  business,  he  must  ap- 
pear with  his  apprentice  before  the  superior  court  of  the 
county  in  which  the  latter  resides,  and  if  the  court  is 
satisfied  that  the  master  has  done  justice  to  the  appren- 
tice for  the  time  he  has  had  charge  of  him,  the  court  has 
power  to  discharge  the  master  from  the  indenture  and  to 
again  bind  the  apprentice,  if  necessary." 

Civil  Code,  Sec.  276. 


TITLE  TWO-CRIMINAL  LAWS  RELATING 
TO  CHILDREN 

Compiled  by  William  Chambers 


Every  person  who  inveigles  or  entices  any  unmarried 
female,  of  previous  chaste  character,  under  the  age  of 
eighteen  years,  into  any  house  of  ill-fame  or  of  assignation, 
or  elsewhere  for  the  purpose  of  prostitution,  or  to  have 
illicit  carnal  connection  with  any  man;  and  every  per- 
son who  aids  or  assists  in  such  inveiglement  or  entice* 
ment;  and  every  person  who,  by  any  false  pretenses, 
false  representation,  or  other  fraudulent  means,  pro- 
cures any  female  to  have  illicit  carnal  connection  with 
any  man — is  punishable  by  imprisonment  in  the  state  prison 
not  exceeding  five  years,  or  by  imprisonment  in  a  county 

70 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

jail  not  exceeding  one  year,  or  by  a  fine  not  exceeding 
one  thousand  dollars,  or  by  both  such  fine  and  imprison- 
ment.    Sec.   266   Penal   Code. 

Every  person  who  takes  away  any  female  under  the 
age  of  eighteen  years  from  her  father,  mother,  guardian  or 
other  person  having  the  legal  charge  of  her  person,  with- 
out their  consent,  for  the  purpose  of  prostitution,  is  punish- 
able by  imprisonment  in  the  state  prison  not  exceeding  five 
years,  and  a  fine  not  exceeding  one  thousand  dollars. 

Sec.  267  Penal  Code. 

A  parent  who  wilfully  omits,  without  lawful  excuse,  to 
furnish  necessary  food,  clothing,  shelter  or  medical  at- 
tendance for  his  child,  is  guilty  of  a  misdemeanor. 

Sec.  270  Penal  Code. 

Every  parent  of  any  child  under  the  age  of  six  years, 
and  every  person  to  whom  such  child  has  been  confided  for 
nurture  or  education,  who  deserts  such  child  in  any  place 
whatever,  with  intent  wholly  to  abandon  it,  is  punishable 
by  imprisonment  in  the  state  prison  not  exceeding  seven 
years,  or  in  a  county  jail  not  exceeding  one  year. 

Sec.  271,  Penal  Code. 

Every  person  who  knowingly  and  wilfully  abandons  or 
who  having  ability  so  to  do,  fails  or  refuses  to  maintain  his 
or  her  minor  child  under  the  age  of  fourteen  years,  or 
who  falsely,  knowing  the  same  to  be  false,  represents  to 
any  manager,  officer  or  agent  of  any  orphan  asylum  or 
charitable  institution  for  the  care  of  orphans,  that  any 
child  for  whose  admission  into  such  asylum  or  institution 
application  is  made  is  an  orphan,  is  guilty  of  misdemeanor. 

Sec.  271a,  Penal  Code. 

Any  person,  whether  as  parent,  relative  common  guard- 
ian, employer  or  otherwise,  having  the  care,  custody,  or  con- 
trol of  any  child  under  the  age  of  sixteen  years,  who  exhibits, 
uses  or  employs,  or  in  any  manner,  or  under  any  pretense, 
sells,  apprentices,  gives  away,  lets  out,  or  disposes  of  any 
such  child  to  any  person,  under  any  name,  title  or  pretense, 
for  or  in  any  business,  exhibition  or  vocation,  injurious 
to  the  health  or  dangerous  to  the  life  or  limb  of  such  child, 
or  in  or  for  the  vocation,  occupation,  service  or  purpose  cf 
singing,  playing  on  musical  instruments,  rope  or  wire 
walking,  dancing,  begging  or  peddling,  or  as  a  gymnast, 
acrobat,  contortionist,  or  rider,  in    any  place    whatsoever, 

71 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

or  for  or  in  any  obscene,  indecent  or  immoral  purposes, 
exhibition  or  practice  whatsoever,  or  for  or  in  any  men- 
dicant or  wandering  business  whatsoever,  or  who  causes, 
procures,  or  encourages  such  child  to  engage  therein,  is 
guilty  of  a  misdemeanor,  and  punishable  by  a  fine  of  not 
less  than  fifty  nor  more  than  two  hundred  and  fifty  dollars, 
or  by  imprisonment  in  the  County  Jail  for  a  term  not  ex- 
ceeding six  months,  or  by  both  such  fine  and  imprison- 
ment. Nothing  in  this  section  contained  applies  to  or 
affects  the  employment  or  use  of  any  such  child,  as  a  singer 
or  musician  in  any  church,  school  or  academy,  or  the  teach- 
ing or  learning  of  the  science  or  practice  of  music;  or  the 
employment  of  any  child  as  a  musician  at  any  concert  or 
other  musical  entertainment,  on  the  written  consent  of  the 
mayor  of  the  city  or  President  of  the  Board  of  Trustees 
of  the  city  or  town  where  such  concert  or  entertainment 
takes  place.     Sec.  272,  Penal  Code. 

Every  person  who  takes,  receives,  hires  employs,  uses, 
exhibits,  or  has  in  custody  any  child  under  the  age  and 
for  any  of  the  purposes  mentioned  in  the  preceding  sec- 
tion, is  guilty  of  a  like  offense,  and  punishable  by  a  like 
punishment   as   therein   provided. 

Sec.    273,   Penal    Code. 

Any  person  whether  as  parent,  guardian,  employer  or 
otherwise,  and  any  firm  or  corporation,  who  as  employer 
or  otherwise  shall  send,  direct  or  cause  to  be  sent  or  direct- 
ed to  any  saloon,  gambling  house,  house  of  prostitution,  or 
other  immoral  place,  any  minor  under  the  age  of  eighteen 
years,  is  guilty  of  a  misdemeanor.      Sec.  273,  Penal  Code. 

Any  person  who  wilfully  causes  or  permits  any  child 
to  suffer,  or  who  inflicts  thereon  unjustifiable  physical 
pain  or  mental  suffering,  and  whoever  having  the  care 
and  custody  of  any  child,  causes  or  permits  the  life  or 
limb  of  such  child  to  be  endangered,  or  the  health  of 
such  child  to  be  injured,  and  any  person  who  wilfully  causes 
or  permits  such  child  to  be  placed  in  such  situation  that 
its  life  or  limb  may  be  endangered,  or  its  health  likely 
to  be  injured,  is  guilty  of  a  misdemeanor. 

Sec.  273a  Penal  Code. 

No  child  under  the  age  of  sixteen  years  must  be  placed 
in  any  prison,  or  place  of  confinement,  or  in  any  court 
room,  or  in  any  vehicle  for  transportation  to  any  place, 

72 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

in    company    with    adults    charged    with    or   convicted   of 
crime,  except  in  the  presence  of  a  proper  official. 

Sec.   273b  Penal  Code. 

When,  upon  examination  before  a  court,  or  magis- 
trate, it  appears  that  any  child  under  the  age  of  sixteen 
years  has  been  found  begging,  whether  actually  begging 
or  under  the  pretext  of  selling  anything,  or  wandering 
and  not  having  any  settled  place  of  abode,  or  proper 
guardianship,  or  visible  means  of  subsistence;  or  desti- 
tute, or  frequenting  the  company  of  reputed  thieves,  or 
prostitutes  or  houses  of  prostitution  or  assignation, 
dance  houses,  concert  saloons,  theaters,  or  places  where 
spirituous  liquors  are  sold;  or  engaged  in  any  business, 
exhibition  or  vocation  mentioned  in  section  two  hundred 
and  seventy-two;  or  in  the  custody  of  any  person  con- 
victed of  a  criminal  assault  upon  it;  the  court  or  magis- 
trate may,  when  it  deems  it  expedient  for  the  welfare 
of  such  child,  commit  it  to  an  orphan  asylum,  society  for 
the  prevention  of  cruelty  to  children,  or  other  charitable 
institution,  or  make  such  other  disposition  thereof  as 
now  is  or  may  hereafter  be  provided  by  law  in  cases  of 
vagrant,  truant,   disorderly,   pauper  or  destitute   children. 

Sec.  273d  Penal  Code. 

Every  telephone,  special  delivery  company  or  associa- 
tion, and  every  other  corporation  or  person  engaged  in 
the  delivery  of  packages,  letters,  notes,  messages,  or 
other  matter,  and  every  manager,  superintendent,  or 
other  agent  of  such  person,  corporation,  or  association, 
who  sends  any  minor  in  the  employ  or  under  the  con- 
trol of  any  such  person,  corporation,  association  or  agent, 
to  the  keeper  of  any  house  of  prostitution,  variety  the- 
ater, or  other  place  of  questionable  repute,  or  to  any 
person  connected  with,  or  any  inmate  of,  such  house,  the- 
ater, or  other  place,  or  who  permits  such  minor  to  enter 
such  house,  theater  or  other  place,  is  guilty  of  a  misde- 
meanor. Sec.  273e  Penal  Code. 

Every  person  who  maliciously,  forcibly,  fraudulently 
takes  or  entices  away  any  minor  child  with  intent  to  de- 
tain and  conceal  such  child  from  its  parent,  guardian  or 
other  person  having  the  lawful  charge  of  such  child,  is  pun- 
ishable by  imprisonment  in  the  state  prison  not  exceed- 
ing twenty  years.  Sec.  278  Penal  Code. 

73 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 


Every  person  who  sells,  or  gives,  or  furnishes  in  any- 
way to  another  who  is  in  fact  under  the  age  of  sixteen 
years,  any  tobacco,  or  preparation  of  tobacco,  is  guilty 
of  a  misdemeanor  and  upon  conviction  thereof  shall  be 
punished  by  a  fine  not  exceeding  one  hundred  dollars; 
provided,  however,  that  this  section  shall  not  be  deemed 
to  apply  to  articles  furnished  or  prescriptions  from  phy- 
sicians authorized  by  law  to  practice  medicine,  nor  to 
persons  who  supply  such  articles  to  their  own  children, 
nor  to  sales  made  to  such  minors  upon  the  written  con- 
sent of  the  parents  or  guardians  of  such  minors  first  ob- 
tained in  writing  by  the  vender.  [Sec.  308  Penal  Code. 

Any  proprietor,  keeper,  manager,  conductor,  or  person 
having  the  control  of  any  house  of  prostitution,  or  any 
house  or  room  resorted  to  for  the  purpose  of  prostitution, 
who  shall  admit  or  keep  any  minor  of  either  sex  therein; 
or  any  parent  or  guardian  of  any  such  minor  who  shall 
admit  or  keep  such  minor,  or  sanction,  or  connive  at  the 
admission  or  keeping  thereof,  into,  or  in  any  such  house  or 
room — shall  be  guilty  of  a  misdemeanor. 

Sec.  309  Penal  Code. 

Every  owner — lessee,  or  keeper  of  any  house  used  in 
whole,  or  in  part,  as  a  saloon  or  drinking  place,  who  know- 
ingly permits  any  person  under  twenty-one  years  of  age 
to  play  at  any  game  of  chance  therein,  is  guilty  of  a  mis- 
demeanor. Sec.  336  Penal  Code. 

Every  person  who  sells,  gives  or  delivers  to  any  minor 
child,  male  or  female,  under  the  age  of  eighteen  years, 
any  intoxicating  drink  in  any  quantity  whatsoever,  or 
who,  as  proprietor  or  manager  of  any  saloon  or  public 
house  where  intoxicating  liquors  are  sold,  permits  any 
such  minor  child  under  the  age  of  eighteen  years,  to 
visit  said  saloon  or  public  house  where  intoxicating  liq- 
uors are  sold,  shall  be  guilty  of  a  misdemeanor,  and 
shall,  upon  conviction  thereof,  be  punished  by  a  fine  of 
not  more  than  three  hundred  dollars,  or  by  imprisonment 
in  the  county  jail  for  a  period  not  exceeding  one  hundred 
and  fifty  days,  or  by  both  such  fine  and  imprisonment, 
provided,  that  this  section  shall  not  apply  to  the  parents 
of  such  children,  or  to  guardians  of  their  wards. 

Sec.  397b  Penal  Code. 

U 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

Every  person  who  purchases  or  receives  in  pledge  or 
by  way  of  mortgage,  from  any  person  under  the  age  of 
sixteen  years,  any  junk,  metal,  mechanical  tools,  or  im- 
plements, is  guilty  of  a  misdemeanor.  Sec.  501  Penal  Code. 

Every  person  having  a  minor  child  under  his  control, 
either  as  a  ward  or  an  apprentice,  who,  except  in  vini- 
cultural  or  horticultural  pursuits,  or  in  domestic  or  house- 
hold occupations,  requires  such  child  to  labor  more  than 
eight  hours  in  any  one  day,  is  guilty  of  a  misdemeanor. 

Sec.  651  Penal  Code. 

No  minor,  under  the  age  of  sixteen  years,  shall  be  ad- 
mitted at  any  time  to,  or  permitted  to  remain  in,  any  sa- 
loon or  place  of  entertainment  where  any  spirituous  liq- 
uors, or  wines,  or  intoxicating  or  malt  liquors  are  sold, 
exchanged,  or  given  away,  or  at  places  of  amusement 
known  as  dance  houses  and  concert  saloons,  unless  ac- 
companied by  parent  or  guardian.  Any  proprietor,  keeper, 
or  manager  of  any  such  place  who  shall  admit  such  minor 
to,  or  permit  him  or  her  to  remain  in  any  such  place,  un- 
less accompanied  by  parent  or  guardian,  shall  be  guilty 
of  a  misdemeanor.  Sec.   I  Act  1878. 

Every  person  having  the  care,  custody  or  control  of 
any  child  under  the  age  of  sixteen  years  shall  restrain 
such  child  from  begging,  whether  actually  begging  or 
under  the  pretext  of  peddling.  Any  person  offending 
against  this  section  shall  be  arrested  and  brought  before 
a  court  or  magistrate,  and  for  the  first  offense  shall  be 
reprimanded,  and  for  each  subsequent  offense  shall  be 
guilty  of  a  misdemeanor.  Sec.  2  Act.   1878. 

Section  1203  Penal  Code  provides  that  the  court,  Judge 
or  Justice  may  suspend  the  imposing  of  sentence  as  to 
a  defendant  over  the  age  of  sixteen  years  if  it  shall  ap- 
pear that  there  are  circumstances  in  mitigation  of  the 
punishment  or  that  the  ends  of  justice  and  the  interests 
of  society  and  reform  of  the  defendant  may  be  subserved 
thereby. 

Section  1388  Penal  Code  provides  that  final  judgment 
may  be  suspended  on  any  conviction,  charge,  or  prosecu- 
tion of  a  minor,  for  misdemeanor  or  felony,  where  in  the 
judgment  of  the  court  in  which  such  proceeding  is  pend- 
ing there  is  reasonable  ground  to  believe  that  such  minor 

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LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

may  be  reformed,  and  that  a  commitment  to  prison  would 
work  manifest  injury  in  the  premises. 

EDUCATIONAL  RIGHTS  OF  CHILDREN. 
The  Education  of  Children  is  Compulsory. 

For  the  provision  of  law  relating  to  the  Educational 
Rights  of  Children,  see  Statutes  of  California  and  espe- 
cially Section  1662  Pol.  Code  and  the  Act  to  enforce  the 
educational  rights  of  children  etc.,  approved  March  24th, 
1903  (Statutes  of  1903  page  388)  and  the  amendment 
thereof  approved  March  20th,  1905  (Statutes  1905,,  page 
388). 

Reform  Schools,  etc.,  For  Children. 

There  have  been  established  by  the  California  Legisla- 
ture a  Home  for  the  care  and  training  of  feeble  minded 
children;  also  Reform  Schools  for  Juvenile  Offenders,  such 
as  the  Wlhittier  Reform  School  and  the  Preston  School 
of  Industry. 

In  1889  the  legislature  passed  an  act  establishing  an 
institution  at  Whittier  to  which  minor  offenders  might  be 
committed  by  the  court.  Such  act  as  amended  enacts 
that  when  any  boy  between  the  ages  of  seven  and  six- 
teen, or  any  girl  between  the  ages  of  seven  and  eighteen 
years  shall  be  found  guilty  by  a  Superior  Court  of  any 
County  in  the  state  and  who  in  the  opinion  of  such  court 
would  be  a  fit  subject  for  commitment  to  the  Whittier 
Reform  School,  it  shall  be  lawful  for  the  said  court  to 
suspend  judgment  or  sentence  (except  when  the  penalty 
is  life  imprisonment  or  death)  and  to  commit  such  minor 
to  the  said  school  until  any  such  male  minor  shall  have 
reached  the  age  of  sixteen  years,  or  any  such  female 
minor  shall  have  reached  the  age  of  twenty-one  years 
unless  sooner  discharged  by  law  or  as  in  the  act  provided. 

For  the  statutory  provisions  relating  to  the  Whittier 
Reform  School  see  Statutes  1889,  pages  111  et  seq.; 
Statutes  1893,  page  328;  Statutes  1895,  pages  93  and  122, 
and  (Statutes  1905,  pages  80  and  226. 

In  1889  the  legislature  passed  an  Act  establishing  the 
Preston  School  of  Industry.  Such  act  enacts  that  when 
any  boy  under  the  age  of  eighteen  years  shall  be  found 
guilty,  by  a  magistrate  or  Court  of  competent  jurisdiction, 

76 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

of  any  offense  punishable  by  fine,  or  by  imprisonment  or 
both,  and  who,  in  the  opinion  of  such  magistrate  or  Court, 
would  be  a  fit  subject  for  commitment  to  the  said  school, 
it  shall  be  lawful  for  the  magistrate  or  Court  to  suspend 
judgment  or  sentence  (except  when  the  penalty  is  life  im- 
prisonment or  death),  and  to  commit  such  boy  to  the  said 
school  for  a  period  not  exceeding  the  time  when  he  shall 
attain  his  twenty-first  birthday,  unless  sooner  discharged 
by  law,  or  as  in  such  Act  provided;  but  no  boy  who 
is  under  the  age  of  eight  years,  or  who  is  of  unsound 
mind,  shall  be  committed  to  the  said  school. 

For  the  statutory  provisions  relating  to  the  Preston 
School  of  Industry,  see  Statutes  1889,  pages  100  et  seq.; 
and   Statutes   1895,   pages   93   and  122. 

The  California  Home  for  the  Care  and  Training  of 
Feeble  Minded  Children  was  established  by  Act  of  the 
Legislature  approved  March  18,  1885. 

SOME    SPECIAL    CALIFORNIA    STATUTES    RELATING 
TO  CHILDREN. 

Juvenile  Court  Law. 
(Statutes  1903,  p.  44;  amended  by  Statute  1905,  p.  806). 
Section  1.  This  act  shall  apply  only  to  children  under 
the  age  of  sixteen  years  not  now  or  hereafter  inmates 
of  a  state  institution.  For  the  purposes  of  this  act  the 
words  "dependent  child"  shall  mean  any  child  under  the 
age  of  sixteen  years  years  who  is  found  begging,  or  re- 
ceiving or  gathering  alms  (whether  actually  begging  or 
under  the  pretext  of  selling  or  offering  for  sale  anything), 
or  being  in  any  street,  road  or  public  place  for  the  pur- 
pose of  so  begging,  gathering  or  receiving  alms;  or  who 
is  found  wandering  and  not  having  any  home  or  settled 
place  of  abode,  or  proper  guardianship,  or  visible  means 
of  subsistence;  or  who  is  found  destitute,  or  whose  home, 
by  reason  of  neglect,  cruelty  or  depravity  on  the  part  of 
either  of  its  parents  or  of  its  guardian,  or  other  person 
in  whose  care  it  may  be,  is  an  unfit  place  for  such  child; 
or  who  frequents  the  company  of  reputed  criminals  or 
prostitutes,  or  who  is  found  living  or  being  In  any  house 
of  prostitution  or  assignation,  or  who  habitually  visits, 
without   parent  or  guardian,   any  saloon,  or  place  where 

77 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

any  spirituous  liquors,  or  wine,  or  intoxicating  or  malt 
liquors  are  sold,  exchanged,  or  given  away,  or  who  is 
incorrigible,  or  who  is  a  persistent  truant  from  school. 
The  words  "delinquent  child"  shall  include  any  child  un- 
der the  age  of  sixteen  years  who  violates  any  law  of  this 
state,  or  any  ordinance  of  any  town,  city,  county,  or  city 
and  county  of  this  state. 

Section  2.  In  counties  having  more  than  one  judge 
of  a  superior  court,  the  judges  of  such  court  may  from 
time  to  time  designate  one  or  more  of  their  number  whose 
duty  it  shall  be  to  hear  all  cases  coming  under  this  act. 
In  counties  of  the  first  class,  such  designation  shall  be 
made  by  the  presiding  judge.  The  orders  and  findings, 
if  any,  of  the  superior  court,  in  all  cases  coming  under 
the  provisions  of  this  act,  shall  be  entered  in  a  book  to 
be  kept  for  that  purpose  and  known  as  the  "Juvenile  Rec- 
ord" and  the  court  acting  under  this  act  shall  be  called 
the  "Juvenile  Court".  In  justices'  courts  having  more 
than  one  justice  of  the  peace,  and  in  police  courts  having 
more  than  one  judge,  justices  of  the  peace  and  the  judges 
of  the  police  courts,  from  time  to  time  may  designate  one 
of  their  respective  number  whose  duty  it  shall  be  to  hear 
all  cases  coming  under  this  act.  All  cases  coming  under 
the  provisions  of  this  act  shall  be  heard  at  a  special  sep- 
arate session  of  the  court,  and  no  matter,  other  than  cases 
under  this  act,  shall  be  on  the  calendar,  or  shall  be  heard 
at  such  session,  nor  shall  there  be  permitted  to  be  present 
at  such  session  any  person  on  trial,  or  awaiting  trial,  or 
under  accusation  of  crime,  who  does  not  come  under  the 
provisions  of  this  act. 

Section  3.  Any  citizen  of  the  state  may  file  with  the 
clerk  of  the  superior  court  a  petition  showing  that  there 
is  within  the  county,  or  residing  within  the  county,  a  de- 
pendent child,  and  praying  that  the  superior  court  deal 
with  such  child  as  provided  in  this  act.  Such  petition 
shall  be  verified,  and  shall  contain  a  statement  of  the 
facts  constituting  such  dependency  as  provided  in  sec- 
tion one  of  this  act.  There  shall  be  no  fee  for  filing  said 
petition. 

Section  4.  Upon  the  filing  of  the  petition,  provided  for 
in  section  three  hereof,  a  citation  shall  issue,   requiring 

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LAWS  BELATING  TO  WOMEN  AND  CHILDEEN 


the  person  having  custody  or  control  of  the  child,  or  with 
whom  the  child  may  he,  to  appear  with  the  child  at  a 
place  and  time  stated  in  the  citation.  Service  of  such 
citation  must  be  made  at  least  twenty-four  hours  before 
the  time  stated  therein.  The  parents  or  guardian  of  the 
child,  if  residing  in  the  county  in  which  the  court  sits, 
and  if  their  places  of  residence  be  known  to  the  petition- 
er, or  if  there  be  neither  parent  nor  guardian  so  residing, 
or  if  their  places  of  residence  be  not  known  to  petitioner, 
then  some  relative  of  the  child,  if  there  be  any  residing 
in  said  county,  and  if  his  residence  and  relationship  to 
such  child  be  known  to  petitioner,  shall  be  notified  of 
the  proceedings  by  service  of  citation  requiring  them  to 
appear  at  the  time  and  place  to  be  stated  in  such  citation. 
In  any  case  the  judge  may  appoint  some  suitable  person 
to  act  in  behalf  of  the  child,  and  may  order  such  further 
notice  of  the  proceeding  to  be  given  as  he  may  deem 
proper.  If  any  person,  cited  as  herein  provided,  shall  fail, 
without  reasonable  cause,  to  appear  and  abide  by  the  or- 
der of  the  court,  or  to  bring  the  child,  if  so  required  in 
the  citation,  such  failure  shall  constitute  a  contempt  of 
said  court  and  may  be  punished  as  provided  for  in  cases 
of  contempt  of  court.  In  case  any  such  citation  cannot 
be  served,  or  the  party  served  fails  to  obey  the  same,  and 
in  any  case  in  which  it  shall  be  made  to  appear  to  the 
court  that  such  citation  shall  be  ineffectual,  a  warrant 
of  arrest  may  issue  on  the  order  of  the  court,  either 
against  the  parent  or  guardian,  or  the  person  having  the 
custody  of  the  child,  or  with  whom  the  child  may  be,  or 
against  the  child  itself,  or  any  of  said  persons;  or  if 
there  be  no  person  to  be  served  with  citation  as  above 
provided,  a  warrant  of  arrest  may  be  issued  against  the 
child  immediately.  On  the  return  of  the  citation  or 
other  process,  or  as  soon  thereafter  as  may  be,  the  court 
shall  proceed  to  hear  and  dispose  of  the  case  in  a  sum- 
mary manner.  Until  the  final  disposition  of  any  case,  the 
child  may  be  retained  in  the  possession  of  the  person 
having  charge  of  the  same,  or  may  be  kept,  upon  the  or- 
der of  the  court,  in  some  suitable  place,  provided  by  the 
county,  or  city  and  county,  or  may  be  held  otherwise,  as 
the  court  may  direct. 

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LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

Section  5.  When  any  child  under  the  age  of  sixteen 
years  shall  be  found  by  said  court  or  judge  or  justice  to 
be  dependent,  within  the  meaning  of  this  act,  the  ccurt 
may  make  an  order  committing  the  child,  ror  such  time  dur- 
ing its  minority  as  the  court  may  deem  fit,  to  the  care  of 
some  reputable  citizen  of  good  moral  character,  or  to  the 
care  of  some  association,  society  or  corporation  willing 
to  receive  it,  embracing  in  its  objects  the  purpose  of 
caring  for  or  obtaining  homes  for  dependent  or  neglected 
children,  or  to  care  of  the  probation  officers  or  other  per- 
son to  remain  in  the  home  of  the  child.  The  court  may 
thereafter  set  aside,  change  or  modify  such  order. 

Section  6.  The  judge  of  the  superior  court  in  and  for 
each  county  or  city  and  county  of  the  state,  or  where 
there  are  more  than  one  judge  of  said  court,  a  majority 
of  the  judges  thereof  by  an  order  entered  in  the  minutes 
of  such  court,  shall  appoint  seven  discreet  citizens  of 
good  moral  character,  and  of  either  sex,  to  be  known  as 
probation  committee,  and  shall  fill  all  vacancies  occurr- 
ing in  such  committee.  The  clerk  of  said  court  shall  im- 
mediately notify  each  person  appointed  on  said  committee 
and  thereupon  said  persons  shall  appear  before  the  judge 
of  said  juvenile  court,  if  there  be  one,  or  otherwise  be- 
fore a  judge  of  said  superior  court  in  said  county,  and 
qualify  by  taking  oath,  to  be  entered  in  said  juvenile  rec- 
ord, if  any,  or  in  the  minutes  of  said  superior  court,  to 
faithfully  perform  the  duties  of  a  member  of  such  pro- 
bation committee. 

'Section  7.  The  members  of  such  probation  committees 
shall  hold  office  for  four  years,  and  until  their  successors 
are  appointed,  provided  that  of  those  first  appointed,  one 
shall  hold  office  for  one  year,  two  for  two  years,  two  fo* 
three  years,  and  two  for  four  years,  the  terms  for  which 
the  respective  members  first  appointed  shall  hold  office 
to  be  determined  by  lot  as  soon  after  their  appoint- 
ment as  may  be.  Wjhen  any  vacancy  occurs  in  any  pro- 
bation committee  by  expiration  of  the  term  of  office  of  any 
member  thereof,  the  successor  shall  be  appointed  to  hold 
for  the  term  of  four  years;  when  any  vacancy  occurs  for 
any  other  reason,  the  appointee  shall  hold  for  the  unex- 
pired term  of  his  predecessor. 

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LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

Section  8.  The  members  of  the  Probation  Committee 
shall  serve  without  compensation. 

Section  9.  The  superior  court  or  any  judge  thereof 
may  at  any  time  require  said  probation  committee  or  a 
probation  officer  to  examine  into  the  qualifications  and 
management  of  any  society,  association  or  corporation, 
other  than  a  state  institution,  applying  to  receive  any 
child  or  children  under  this  act,  and  to  report  to  the 
court,  provided  that  nothing  in  this  section  shall  be  con- 
strued as  giving  any  probation  committee  or  probation 
officer  any  power  to  enter  any  institution  without  the 
consent  of  such  institution. 

It  shall  be  the  duty  of  each  probation  committee  prior 
to  December  first  in  each  year  to  prepare  a  report  in 
writing  on  the  qualifications  and  management  of  all  so- 
cieties, associations  and  corporations,  except  state  institu- 
tions, applying  for  or  receiving  any  child  under  this  act 
from  the  courts  of  their  respective  counties,  and  in  said 
report  said  committee  may  make  such  suggestions  or 
comments  as  to  them  may  seem  fit;  said  report  to  be 
filed  in  the  office  of  the  clerk  of  the  court  appointing  such 
committee,  for  the  information  of  the  judges  thereof. 

Section  10.  In  counties  of  the  first  class  there  shall 
be  one  probation  officer  and  not  more  than  five  deputy 
probation  officers;  in  counties  of  the  second  class,  one 
probation  officer  and  not  more  than  one  deputy  proba- 
tion officer;  in  all  other  counties  there  shall  be  one  pro- 
bation officer. 

In  any  county  or  city  and  county  additional  deputy  pro- 
bation officers  may  be  appointed  and  their  appointment 
approved  or  disapproved  as  hereinafter  provided,  from 
time  to  time  when  in  the  opinion  of  the  court  it  may  be 
necessary,  provided  that  they  serve  without  salary. 

Section  11.  The  salaries  of  the  probation  officers  and 
deputy  probation  officers  (except  as  herein  otherwise  pro- 
vided) shall  be  as  follows,  and  shall  be  paid  out  of  the 
county  treasury  of  the  county  for  which  they  are  ap- 
pointed, after  1  oing  allowed  and  audited  in  the  same 
manner  as  the  salaries  of  other  county  officers. 

In  counties  of  the  second  class  the  probation  officer 
shall   receive  $125   per  month,   and  the  deputy  probation 

81 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

officer  seventy-five  dollars  per  month.  In  all  other  coun- 
ties the  probation  officer  and  the  deputy  probation  officers 
shall  serve  without  compensation,  provided,  however, 
that  the  probation  officer  and  deputy  probation  officers  in 
all  the  counties  of  the  state  shall  be  allowed  such  neces- 
sary incidental  expenses  as  may  be  authorized  by  a  judge 
of  the  superior  court;  and  the  same  shall  be  a  charge 
upon  the  county  in  which  the  court  appointing  them  has 
jurisdiction,  and  the  said  expenses  shall  be  paid  out  of 
the  county  treasury  upon  a  warrant  therefor  issued  by 
the  said  court. 

Section  12.  The  offices  of  probation  officer  and  dep- 
uty probation  officer  are  hereby  created.  The  appoint- 
ments of  probation  officers  and  deputy  probation  officers 
to  serve  hereunder  in  any  county  or  city  and  county  shall 
be  made  by  the  probation  committee  of  said  county  or 
city  and  county  from  discreet  citizens  of  good  moral  char- 
acter. The  appointments  by  each  probation  committee 
shall  be  made  in  writing,  signed  by  a  majority  of  the 
members  of  such  committee,  and  filed  with  the  county 
clerk  of  such  county,  and  shall  be  subject  to  and  shall 
take  effect  upon  approval  by  the  judge  of  the  superior 
court  appointing  such  committee,  or  by  a  majority  of 
the  judges  thereof  if  there  be  no  more  than  one;  such  ap- 
proval to  be  by  order  entered  in  the  minutes  of  said  court. 
The  term  of  office  of  probation  officers  and  of  deputy 
probation  officers  shall  be  two  years  from  the  date  of  the 
said  approval  of  their  several  appointments,  such 
probation  officers  and  deputy  probation  officers  may  at 
any  time  be  removed  by  the  judge  approving  their  ap- 
pointment in  his  discretion. 

Section  13.  It  shall  be  the  duty  of  the  clerk  of  any 
court  before  which  a  child  is  'brought  under  the  provi- 
sions of  this  act,  or  if  there  be  no  clerk,  then  it  shall  be 
the  duty  of  the  judge  or  justice  of  said  court,  before  the 
hearing  of  said  matter,  to  notify  the  probation  officer  of 
the  county  thereof;  except  in  cases  where  the  child  is 
brought  before  the  court  by  a  society,  association  or  cor- 
poration which  embraces  within  its  objects  the  care  of 
dependent  or   delinquent   children   and  which  has   in  the 

82 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 


last  report  thereon  by  the  probation  committee  of  such 
county  been  favorably  passed  upon. 

'Section  14.  The  probation  officer  or  deputy  probation 
officer  detailed  by  him  for  that  purpose,  shall  inquire  into 
the  child's  antecedents,  character,  history,  family  environ- 
ment and  cause  of  delinquency  or  dependency,  and  shall 
make  his  report  in  writing  to  the  judge  or  justice  in  the 
case  of  every  child  to  be  dealt  with  under  the  provisions 
of  this  act  as  a  dependent  or  delinquent  child;  but  only 
when  the  judge  so  specially  orders  it  in  the  case  of  a 
dependent  child  who  is  already  in  the  charge  of  a  so- 
ciety, association  or  corporation  which  embraces  witin  its 
objects  the  care  of  dependent  children  and  which  has  in 
the  last  report  thereon  by  the  probation  committee  of 
such  county  been  favorably  passed  upon.  In  the  event 
that  such  a  society,  association  or  corporation  shall  be  so 
in  charge,  it  shall  through  its  agent  or  superintendent 
make  such  report  to  the  judge  in  place  of  the  probation 
officer. 

It  shall  be  the  duty  of  said  probation  officer  or  said  dep- 
uty probation  officer  or  said  agent  or  superintendent  of 
such  society,  association  or  corporation  to  be  present  in 
court  in  order  to  represent  the  interests  of  the  child  when 
the  case  is  heard,  and  to  furnish  to  the  court  such  infor- 
mation and  assistance  as  it  may  require  and  to  make 
the  said  report  at  such  time;  and  to  take  such  charge  of 
the  child  before  and  after  the  hearing  as  may  be  ordered. 

The  probation  officer  and  each  deputy  probation  officer 
shall  have  as  to  any  child  committed  to  the  care  of  such 
probation  officer,  the  powers  of  a  police  officer.  At  any 
time  in  his  discretion  such  officer  or  deputy  may  bring 
such  child  before  the  court  committing  such  child  to  his 
care  for  such  further  or  other  action  as  the  court  may  see 
fit. 

Any  of  the  duties  of  the  probation  officer  may  be  per- 
formed by  a  deputy  probation  officer,  and  shall  be  per- 
formed by  him  whenever  detailed  to  perform  the  same 
by  the  probation  officer;  and  it  shall  be  the  duty  of  the 
probation  officer  to  see  that  the  deputy  probation  officer 
performs  his  duties. 

83 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

Section  15.  If  any  child  is  arrested  and  taken  before 
a  justice  of  the  peace  or  police  judge,  then  at  any  time 
before  the  child  is  found  delinquent  and  a  commitment 
thereunder  issues,  it  may  be  detained  under  order  of  the 
court  in  any  detention  home  provided  for  that  purpose 
by  any  county,  or  city  and  county;  or  it  may  be  other- 
wise provided  for  as  the  court  sees  fit  in  any  manner  pro- 
vided herein  for  the  care  of  a  child  after  the  finding  of  its 
delinquency.  If,  after  a  hearing,  any  child  shall  be  found 
to  be  delinquent  by  such  court,  the  justice  of  the  peace 
or  police  judge  may  continue  the  further  hearing  from 
time  to  time,  and  may,  at  any  time  commit  the  child  to 
the  care  and  custody  of  a  probation  officer  and  may  allow 
such  to  remain  in  the  home  of  such  child,  subject  to  the 
visitation  of  a  probation  officer,  and  such  child  shall  re- 
port to  the  probation  officer  as  often  as  may  be  required 
and  be  subject  to  be  returned  to  the  court  for  further  pro- 
ceedings whenever  such  action  may  appear  to  be  neces- 
sary or  desirable.  If  the  justice  of  the  peace  or  police 
judge  at  any  time  deems  it  necessary  or  to  the  best  in- 
terests of  the  child  that  he  should  be  committed  to  a  state 
reform  school  or  to  the  care  or  custody  of  some  associa- 
tion, society  or  corporation  embracing  in  its  objects  the 
care  of  neglected,  dependent  or  delinquent  children,  or 
should  be  placed  in  a  suitable  family  home,  or  that  a 
guardian  should  be  appointed  for  such  child,  the  justice 
of  the  peace  or  police  judge  shall  certify  the  case  with  a 
transcript  of  the  docket  or  other  record  to  the  clerk  of 
the  superior  court  of  the  county  or  city  and  county  in 
which  the  justices'  court  or  police  court  is  held,  and  the 
officer  having  the  child  in  charge  shall  take  the  child  be- 
fore the  superior  court,  and  thereupon  the  superior  court 
may  proceed  to  hear  and  dispose  of  the  case  in  the  same 
manner  as  if  the  child  had  been  brought  before  the  court 
on  petition  as  herein  provided  for  dependent  children.  In 
such  case  the  court  shall  require  notice  to  be  given  and 
investigation  to  be  made  as  in  other  cases  under  this  act, 
and  may  adjourn  the  hearing  from  time  to  time  for  that 
purpose. 

Section  16.  In  the  case  of  a  child  alleged  to  be  de- 
linquent within  the  meaning  of  this  act,  and  brought  be- 

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LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

fore  the  superior  court  at  any  time  before  the  child  is 
found  delinquent  and  a  commitment  thereunder  issues, 
it  may  be  detained  under  order  of  the  court  in  any  de- 
tention home  provided  for  that  purpose  by  any  county  or 
city  and  county;  or  it  may  be  otherwise  provided  for  as 
the  court  sees  fit  in  any  manner  provided 
herein  for  the  care  of  a  child  after  the  finding 
of  its  delinquency.  If  the  court  find  the  child 
to  be  delinquent,  said  court  may  continue  the  hearing 
from  time  to  time,  and  may  at  any  time  commit  the  child 
to  the  care  or  custody  of  the  probation  officer,  and  may 
allow  such  child  to  remain  in  the  home  of  such  child,  sub- 
ject to  the  visitation  of  a  probation  officer,  and  such 
child  shall  report  to  the  probation  officer  as  often  as  may 
be  required,  and  be  subject  to  be  returned  to  the  court 
for  further  proceedings  whenever  such  action  may  appear 
necessary  or  desirable,  or  the  court  may  commit  the  child 
to  the  care  or  custodv  of  the  probation  officer,  to  be  placed 
in  a  suitable  family  home,  subject  to  the  supervision  of 
such  probation  officer  and  the  further  order  of  the  court, 
or  it  may  authorize  the  probation  officer  to  board  out  the 
child  in  some  suitable  family  home  in  case  provision  is 
made  by  voluntary  contribution,  or  otherwise,  for  the  pay- 
ment of  the  board  of  such  child,  until  a  suitable  provi- 
sion may  be  made  for  the  child  in  a  home  without  such 
payment;  or  the  court  may  commit  the  child  for  such 
time  during  its  minority,  as  the  court  may  deem  fit,  to  the 
care  and  custody  of  some  association,  society  or  corpora- 
tion that  will  receive  it,  embracing  within  its  objects  the 
care  of  dependent  or  delinquent  children;  or  the  court 
may  commit  such  child  to  a  state  reform  school,  as  is 
now,  or  may  hereafter  be  provided  by  law  in  accordance 
with  the  procedure  provided  by  law  for  such  commitment. 
Provided  further  that  should  the  legislative  body  of  the 
county,  or  city  and  county,  or  of  a  municipality,  provide 
a  suitable  place  for  the  detention  of  said  dependent  and 
delinquent  children,  which  they  are  hereby  authorized  to 
do,  such  children  may  be  committed  thereto  after  the  ad- 
judication of  dependency  or  delinquency  for  a  definite  pe- 
riod to  be  specified  in  such  order.  The  court  may  there- 
after  set   aside,   change  or   modify   such  order,   and   may 

85 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

provide  for  a  further  detention  in  said  place.  Any  order 
providing  for  the  custody  of  a  dependent  or  delinquent  child 
may  provide  that  the  expense  of  maintenance  of  said  child 
shall  be  paid  by  the  parent  or  parents,  or  guardian,  of 
said  child,  and  in  such  case  shall  determine  the  amount 
so  to  be  paid,  and  shall  determine  whether  or  not  the 
parent  or  parents  shall  exercise  any  control  over  said  child 
and  the  extent  thereof,  and  any  disobedience  of  such  order 
or  interference  with  the  custody  of  the  child  as  therein  de- 
termined by  a  parent  or  guardian  having  notice  of  the  pro- 
ceedings or  of  the  order  shall  constitute  a  contempt  of 
court.  The  court  may  thereafter  set  aside,  change  or  modi- 
fy any  order  herein  provided  for. 

Section  17.  No  court  or  magistrate  shall  commit  a 
child  under  twelve  years  of  age  to  jail,  prison  or  police 
station,  but  if  such  child  is  unable  to  give  bail,  it  may 
be  committed  to  the  care  of  the  sheriff,  police  officer, 
constable  or  other  officer,  who  shall  keep  such  child  in 
some  suitable  place  provided  by  the  city,  county,  or  city 
and  county,  outside  of  the  enclosure  of  any  jail  or  police 
station.  When  any  child  shall  be  sentenced  to  confine- 
ment in  any  institution  to  which  adult  convicts  or  prison- 
ers are  sentenced  or  where  adults  are  confined,  it  shall 
be  unlawful  to  confine  such  child  in  the  same  room  or 
yard  or  enclosure  with  such  adult  convicts  or  prisoners, 
or  to  permit  such  child  to  come  or  remain  within  sight 
of  or  meet  or  come  into  or  remain  in  the  presence  of 
any  of  such  adult  convicts  or  prisoners. 

Section  18.  Nothing  in  this  act  shall  be  construed  to 
repeal  any  portion  of  the  act  entitled  "An  act  to  establish 
a  state  reform  school  for  juvenile  offenders,  and  to  make 
an  appropriation  therefor,"  approved  March  11,  1889,  or 
any  of  the  amendments  thereto,  or  the  act  entitled  "An 
act  to  establish  the  California  Home  for  the  Care  and 
Training  of  Feeble  Minded  Children,  and  provide  for  the 
maintenance  of  the  same,"  approved  March  18,  1885,  or 
any  of  the  amendments  thereto,  or  the  act  entitled  "An 
act  to  establish  a  school  of  industry,  and  provide  for 
the  maintenance  and  management  of  the  same,  and  to 
make  an  appropriation  therefor,"  approved  March  11,  1889, 
or  any  of  the  amendments  thereto;   and     in     all     commit- 

86 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

ments  to  said  institutions,  the  acts  in  reference  to  said  in- 
stitutions shall  govern  t'he  same. 

Section  19.  No  record  of  or  testimon3r  concerning  any 
proceedings  against  any  child  under  this  act  shall  he  ad- 
missible as  evidence  against  sueh  child  in  any  other 
court  or  proceeding;  except  in  proceedings  under  this  act, 
and  except  in  guardianship  or  adoption  proceedings  re- 
lating to  said  child. 

Section  20.  This  act  shall  be  liberally  constructed,  to 
the  end  that  its  purpose  may  be  carried  out,  to-wit:  that 
the  care,  custody  and  discipline  of  a  child  shall  approxi- 
mate as  nearly  as  may  be  that  which  should  be  given  by 
its  parents,  and  in  all  cases  where  it  can  be  properly 
done,  the  child  be  placed  in  an  approved  family,  with 
people  of  the  same  religious  belief  and  become  a  mem- 
ber of  the  family  by  legal  adoption,  or  otherwise.  In 
this  act,  words  used  in  any  gender  shall  include  all  other 
genders,  and  the  word  "county"  shall  include  "city  and 
county." 

Section  21.  All  acts  and  parts  of  acts  inconsistent 
with  this  act  are  hereby  repealed,  except  as  hereinabove 
provided  in  section  19. 

Act  Regulating  Employment  of  Children. 

(Statutes  1905,  Page  11.) 

Section  1.  No  minor  under  the  age  of  eighteen  shall 
be  employed  in  laboring  in  any  manufacturing,  mechani- 
cal or  mercantile  establishment,  or  other  place  of  labor, 
more  than  nine  hours  in  one  day,  except  when  it  is  nec- 
essary to  make  repairs  to  prevent  the  interruption  of  the 
ordinary  running  of  the  machinery,  or  when  a  different 
apportionment  of  the  hours  of  labor  is  made  for  the  sole 
purpose  of  making  a  shorter  day's  work  for  one  day  of 
the  week;  and  in  no  case  shall  the  hours  of  labor  exceed 
fifty-four  hours  in  a  week. 

Section  2.  No  minor  under  the  age  of  sixteen  years 
shall  be  employed  or  permitted  to  work  in  any  mercan- 
tile institution,  office,  laundry,  manufacturing  establish- 
ment or  workshop,  between  the  hours  of  ten  o'clock  in 
the  evening  and  six  o'clock  in  the  morning. 

No  child  under  fourteen  years  of  age  shall  be  employed 
in  any  mercantile  institution,  office,  laundry,  manufactur- 

87 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

ing  establishment,  workshop,  restaurant,  hotel,  apartment 
house,  or  in  the  distribution  or  transmission  of  merchan- 
dise or  messages. 

Provided  that  the  judge  of  the  juvenile  court  of  the 
county  or  city  and  county,  or  in  any  county  or  city  and 
county  in  which  there  is  no  juvenile  court,  then  any  judge 
of  the  superior  court  of  the  county  or  city  and  county  in 
which  such  child  resides,  shall  have  authority  to  issue  a 
permit  to  work  to  any  such  child  over  the  age  of  twelve 
years  upon  a  sworn  statement  being  made  to  him  by  the  par- 
ent of  such  child  that  such  child  is  past  the  age  of  twelve 
years,  that  the  parents  or  parent  of  such  child  are  incapa- 
citated for  labor,  through  illness,  and  after  investigation 
by  a  probation  officer  or  truant  officer  of  the  city,  or  city 
and  county,  in  which  such  child  resides,  or  in  cities  and 
counties  where  there  are  no  probation  or  truant  officers, 
then  by  such  other  competent  persons  as  the  judge  may 
designate  for  this  purpose.  The  permit  so  issued  shall 
specify  the  kind  of  labor  and  the  time  for  which  it  is  issued, 
and  shall  in  no  case  be  issued  for  a  longer  period  than 
shall  seem  necessary  to  the  judge  issuing  such  permit. 
Such  permit  shall  be  kept  on  file  by  the  person,  firm  or 
corporation  employing  the  child  therein  designated,  dur- 
ing the  term  of  said  employment,  and  shall  be  given  up 
to  said  child  upon  his  quitting  such  employment.  Such 
certificate  shall  be  always  open  to  the  inspection  of  the 
truant  and  probation  officers  of  the  city  and  county,  city 
or  county  in  which  the  place  of  employment  is  situated 
or  of  the  officers  of  the  state  bureau  of  labor  statistics. 

And  provided  that  any  such  child,  over  the  age  of 
twelve  years,  may  be  employed  at  any  of  the  occupations 
mentioned  in  this  act  during  the  regular  vacation  of  the 
public  schools  of  the  city,  county  or  city  and  county  in 
which  the  place  of  employment  is  situated,  upon  the  pro- 
duction of  a  permit  signed  by  the  principal  of  the  school 
which  such  child  has  attended  during  the  term  next  pre- 
ceding any  such  vacation.  Such  permit  shall  contain  the 
name  and  age  of  the  child  to  whom  it  is  issued,  and  the 
date  of  the  termination  of  the  vacation  for  which  it  is 
issued,  and  shall  be  kept  on  file  by  the  employer  during 
the  period  of  employment,  and  at  the  termination  of  such 

88 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

employment  shall  be  returned  to  the  child  to  whom  it 
was  issued. 

No  minor  who  is  under  sixteen  years  of  age  shall  be 
employed  or  permitted  to  work  at  any  gainful  occupation 
during  the  hours  that  the  public  schools  of  the  city,  town 
or  school  district  in  which  his  place  of  employment  is 
situated  are  in  session,  unless  he  or  she  can  read  English 
at  sight  and  can  write  legibly  and  correctly  simple  Eng- 
lish sentences,  or  r-Iess  he  or  she  is  a  regular  attendant 
for  the  then  current  term  at  a  regularly  conducted  night 
school.  A  certificate  of  the  principal  of  such  school  shall 
be  held  to  be  sufficient  evidence  of  such  attendance. 

Sec.  3.  Every  person,  firm  or  corporation  employing  min- 
ors under  eighteen  years  of  age,  in  any  manufacturing  es- 
tablishment, shall  post  and  keep  posted,  in  a  conspicuous 
place  in  every  room  where  such  help  is  employed,  a  writ- 
ten or  printed  notice  stating  the  number  of  hours  per  day 
for  each  day  of  the  week  required  of  such  persons. 

Every  person,  firm,  corporation,  agent  or  officer  of  a 
firm  or  corporation  employing  or  permitting  minors  under 
sixteen  years  and  over  fourteen  years  of  age  to  work  in 
any  mercantile  institution,  office,  laundry,  manufacturing 
establishment,  workshop,  restaurant,  hotel,  apartment 
house,  or  in  the  distribution  or  transmission  of  merchan- 
dise or  messages,  shall  keep  a  record  of  the  names,  ages 
and  places  of  residence  of  such  minors,  and  shall  have 
on  file  a  certificate  of  age  and  schooling  as  provided  in 
this  act,  for  every  such  minor  so  employed,  said  record 
and  certificate  to  be  open  at  all  times  to  the  inspection 
of  those  whose  duty  it  is  to  enforce  the  provisions  of  the 
act. 

An  age  and  schooling  certificate  shall  be  approved  only 
by  the  superintendent  of  schools  of  the  city  or  city  and 
county,  or  by  a  person  authorized  by  him,  in  writing,  or 
where  there  is  no  city  or  city  and  county  superintendent 
of  schools,  by  a  person  authorized  by  the  local  school 
trustees;  provided  that  the  superintendent  or  principal 
of  any  school  of  recognized  standing  shall  have  the  right 
to  approve  an  age  and  schooling  certificate,  and  shall 
have  the  same  rights  and  powers  as  the  superintendent 
of  public  schools  to  issue  the  certificate  herein  provided, 

89 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

for  children  attending  such  schools.  The  persons  author- 
ized to  issue  age  and  schooling  certificates  shall  have  the 
authority  to  administer  the  oaths  necessary  for  carrying 
out  the  provisions  of  this  act,  but  no  fee  shall  be  charged 
for  issuing  such   certificates. 

An  age  and  schooling  certificate  shall  not  be  approved 
unless  satisfactory  evidence  is  furnished  by  the  last 
school  census,  the  certificate  of  birth  or  baptism  of  such 
child,  the  public  register  of  birth  of  such  child,  or  in 
some  other  manner,  that  such  child  is  of  the  age  stated 
in  the  certificate. 

A  duplicate  copy  of  each  age  and  schooling  certificate 
granted  under  the  provisions  of  this  act  shall  be  kept  by 
the  person  issuing  such  certificate,  such  copy  to  be  filed 
with  the  county  superintendent  of  schools  in  the  county 
where  the  certificate  was  issued,  provided  that  all  such 
copies  of  certificates  issued  between  June  25th  and  Decem- 
ber 25th  of  any  year  shall  be  filed  not  later  than  Decem- 
ber 31st  of  such  year,  and  those  issued  between  Decem- 
ber 25th  and  June  25th  of  the  ensuing  year  shall  be  filed 
not  later  than  June  30th  of  each  year.  Such  certificate 
shall  be  substantially  in  the  following  form,  to  wit: 

Age  and  Schooling  Certificate. 

This  certifies  that  I  am  the  (father,  mother  or  guard- 
ian) of  (name  of  child),  and  that  (he  or  she)  was  born 
at  (name  of  town  or  city),  in  the  county  of  (name  of 
county  if  known)  and  state  (or  country)  of  (name),  on 
the  (day  and  year  of  birth)  and  is  now  (number  of  years 
and  of  months)  old. 

'Signature  as  provided  in  this  act. 

Town  or  city,  and  date. 

There  personally  appeared  before  me  the  above  named 
(name  of  person  signing)  and  made  oath  that  the  fore- 
going certificate  by  (him  or  her)  signed  is  true  to  the 
best  of  (his  or  her),  knowledge  and  belief. 

I  hereby  approve  the  foregoing  certificate  of  (name  of 
child)  height  (feet  and  inches),  complexion  (fair  or  dark), 
hair  (color),  having  no  sufficient  reason  10  doubt  that  (he 
or  she)  is  of  the  age  therein  certified,  and  I  hereby  certi- 
fy that  (he  or  she)  can  or  can  not  read  English  at  sight, 

90 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 

and  can  or  can  not  write  legibly  simple  sentences  in  the 
English  language. 

Signature  of  the  person  authorized  to  sign,  with  his 
official  character  and  authority. 

Town  or  city,  and  date. 

This  certificate  belongs  to  the  person  in  whose  behalf 
it  is  drawn,  and  it  shall  be  surrendered  to  (him  or  her) 
whenever  (he  or  she)  leaves  the  services  of  the  person, 
firm  or  corporation  holding  the  same. 

The  certificate  as  to  the  birthplace  and  age  of  the  minor 
under  sixteen  and  over  fourteen  years  of  age  shall  be 
signed  by  his  father,  his  mother,  his  guardian;  if  a  child 
has  no  father,  mother  or  guardian  living  in  the  same  city 
or  town,  his  own  signature  to  the  certificate  may  be  ac- 
cepted by  the  person  authorized  to  approve  the  same. 

Every  person  authorized  to  sign  the  certificate  pre- 
scribed by  this  act,  who  knowingly  certifies  to  any  false 
statement  therein,  is  guilty  of  a  misdemeanor  and  upon 
conviction  thereof  shall  be  fined  not  Jess  than  five 
nor  more  than  fifty  dollars,  or  imprisoned  not  more  than 
thirty  days  or  by  both  such  fine  and  imprisonment. 

Section  4.  Any  person,  firm,  corporation,  agent  or 
officer  of  a  firm  or  corporation  that  violates  or  omits  to 
comply  with  any  of  the  foregoing  provisions  of  this  act, 
or  that  employs,  or  suffers,  or  permits  any  minor  to  be 
employed  in  violation  thereof,  is  guilty  of  a  misdemeanor 
and  shall  on  conviction  thereof,  be  punished  by  a  fine  of 
not  less  than  fifty  dollars  or  more  than  two  hundred  dol- 
lars, or  by  imprisonment  for  not  more  than  sixty  days, 
or  by  both  such  fine  and  imprisonment,  for  each  and  every 
offense.  A  failure  to  produce  any  age  and  schooling  cer- 
tificate or  permit,  or  to  post  any  notice  required  by  this 
act,  shall  be  prima  facie  evidence  of  the  illegal  employ- 
ment of  any  person  whose  age  and  schooling  certificate 
or  permit  is  not  produced,  or  whose  name  is  not  so  posted. 
Any  fine  collected  under  the  provisions  of  this  act  shall 
be  paid  unto  the  school  funds  of  the  county,  or  city  and 
county,  in  which  the  offense  occurred. 

Section  5.  Nothing  in  this  act  shall  be  construed  to 
prohibit  the  employment  of  minors  at  agricultural,  hor- 
ticultural, viticultural  or  domestic  labor,  during  the  time 

91 


LAWS  RELATING  TO  WOMEN  AND  CHILDREN 


the   public   schools   are   not  in   session,   or   during   other 
than  school  hours. 

Section  6.  It  shall  be  the  duty  of  the  commissioner  of 
the  bureau  of  labor  statistics  to  enforce  the  provisions 
of  this  act.  But  any  person  may  lay  an  information  be- 
fore a  magistrate  01  the  commission  of  any  public  offense 
defined  in  this  act. 

Society  for  Prevention  of  Cruelty  to  Children. 

Societies  for  the  prevention  of  cruelty  to  children  were, 
previous  to  the  amendments  to  the  Civil  Code  in  1905, 
incorporated  under  an  act  of  the  California  Legislature 
for  the  incorporation  of  such  societies,  approved  April  3, 
1876,  but  since  such  amendments  to  the  code  said  socie- 
ties are  now  incorporated  under  Sections  607  et  seq.  Civil 
Code. 

Such  societies  may  be  formed  and  incorporated  by  any 
number  of  persons  not  less  than  five,  a  majority  of  whom 
must  be  citizens  and  residents  of  California  under  the 
general  provisions  of  the  Code,  and  every  such  society 
so  incorporated  may  take  and  hold  by  gift,  purchase,  de- 
vise or  bequest  any  property  real  or  personal  and  dis- 
pose of  the  same  at  its  pleasure,  but  it  must  not  hold 
real  property,  the  annual  income  of  which  exceeds  $50,- 
000  and  such  corporation  or  any  member  or  officer  thereof 
may  prefer  a  complaint  against  any  person  or  persons 
before  any  court  or  magistrate  having  jurisdiction,  for 
the  violation  of  any  law  relating  to  and  affecting  children 
and  may  aid  in  the  prosecution  of  any  such  offender  be- 
fore such  court  or  magistrate  in  any  proceeding  taken. 

For  further  provisions  relating  to  such  societies  see 
sections  607  et  seq.  Civil  Code. 


92 


INDEX 

References   are    to   Pages. 

Page 
Abandonment  of  child, 71 

—  spouse    27 

—  homestead    42 

Abduction  of  spouse  or  child 50,  71 

—  women 54 

Abortion,  advertising  means  of 57 

Administration,    right   of 48 

Adoption 64 

Adultery,  as  crime 59 

—  ground  of  divorce 12 

Alimony  in  divorce  suit 24 

—  without  divorce 23,  26 

Annulment  of  marriage 9,  12 

Apprenticeship 66 

Bigamy 54 

Breach  of  promise 5 

Children ,    28,  61,  92 

—  admitting  to  house  of  prostitution 74 

—  adoption    of 64 

—  as    apprentices 66 

—  commitment  of,  to  orphan  asylum 73 

—  concealment  of 73 

—  cruelty    to 72 

—  cruelty  to,  prevention  of •.  . .  92 

—  custody  of 28,  62 

—  educational  rights  of 76,  90 

—  employment  of,  regulations 87,  89 

—  exhibiting  in  shows,  etc 71 

—  guardianship   of 29 

—  imprisonment    of 72 

—  juvenile  courts 77,   87 

—  permitting  in  saloons,   etc 74 

—  receiving  pledge  from 75 

—  rights  of 61,  63,  64.  76 

—  selling  liquor  to 74 

—  selling  tobacco  to 74 

—  sending  to  saloon,  etc 72,  73,  75 

—  suspending  sentence  of 75 

Cohabitation,   unlawful 59 

—  procuring    59,   60 

Collusion    19 

Community  property 35 

—  management  and  control  of 36 

—  disposition  of,  by  husband 36 

—  disposition  of,   on  death 38 

—  disposition  of,  on  divorce 37 

—  liable  for  husband's  debts 36 

Condonation    20 

Connivance    19 

93 


INDEX 

Page 

Consent  to  marriage 5 

Contract  of  marriage 3>  4 

Crimes,  persons  capable  of  committing 53 

Criminal  laws  relating  to  children 70,   92 

—  women   53,   60 

Cruelty  (See  Extreme  cruelty). 

—  to  children 72,   92 

Custody  of  children 28>   62 

Damages 

—  for  breach  of  promise 5 

—  for  death  of  husband 51 

—  for    seduction 51 

Debts  of  husband 34»   36 

—  of   wife 34 

—  homestead  liable  for  what 42 

Desertion    (See  Wilful  desertion). 

Disorderly    house,    keeping 55 

Dissolution    of   marriage 12 

Divorce,  action  for 12,  26 

—  action  for,   alimony 24,   26 

—  causes    for 12 

—  causes  for  denying 19,  23 

—  grounds  of 12 

—  disposition  of  property  on 25,  37 

—  effect  of,  on  children 25 

—  expenses  of  suit 24 

—  procedure    23 

—  relief  through  divorce  denied 23,  26 

Divorced  person,  when  may  remarry 4,  23 

Educational  rights  of  children 76,  90 

Executrix    (See   Administration). 

Extreme  cruelty 12 

—  what  constitutes 12,  14,  15 

False  return  of  marriage 56 

Father  (See  Parent). 

Forbidden  marriages,  contracting  or  solemnizing 5'6 

Fraud,  marriage  annulled  for 9 

Gift,  defined 34 

Guardian,  appointment  of 30 

—  defined   29 

—  expenses  and  compensation 33 

—  powers  and  duties  of 31,  32 

—  rules  for  appointment  of 30 

—  terminated,     how 31 

Habitual  intemperance 19 

Heirs,   who  are 39 

Homestead 40,   44 

—  abandonment  of 42 

—  disposition  of,  on  death 43 

—  disposition  of,  on  divorce 25 

—  effect   of 41 

—  how   declared 40 

—  who  may  declare 40,  43 

—  value    of 41 

94 


INDEX 

Husband 

—  community  property,  rights  and  powers 36 

—  head  of  family 26 

— >  obligations  of 26 

—  obligations  of  wife  to , 26,  27 

—  rights   of 26 

—  separate  property  of 35 

Husband  and  wife,  relation  as  affecting  property  rights 27 

Illegitimate  children 29 

Incest    55 

Infant  (See  Children,  minor). 

Intemperance    (See  Habitual   Intemperance). 

Juvenile  Courts 77-87 

—  how   constituted 77,    78 

—  Judge  of 77,    88 

—  probation  committee 80,   81 

—  probation  committee,  serve  without  compensation 81 

—  probation  officers 81 

probation  officers,  duties  of 81,   83 

—  probation  officers,   salaries  of 81 

Keeping   disorderly  house 55 

Limitation  of  actions  for  annulment 11 

—  divorce 21 

Marriage 3-28 

—  annulment    of 9 

—  annulment  of,  effect  on  children 12 

—  authentication    of 7,8 

—  breach  of  promise  of 5 

—  certificate 9 

—  contracting  or  solemnizing  forbidden 56 

—  contract    relation 3 

—  declaration  of , 9 

—  dissolved,    how 12 

—  false  return  of 56 

—  foreign     4 

—  license 7 

—  of  divorced  person 4,  23 

—  prohibited,    what 4 

—  recording    9 

—  settlements 45 

— >  solemnization    8 

—  unsolemnized,  action  to  affirm 9 

—  void    4 

—  without    license 8 

Married  woman 

—  contract  rights 45 

—  debts    of 34 

—  earnings    35 

—  obligations  of 26,  27 

—  obligations  of  husband  to 26,  27 

—  property  rights 33,   44 

—  protection  of  personal  rights 50 

—  rights  as  to  husband's  property 50 

95 


INDEX 

Page 

—  right  of  administration 48 

—  rights  in  settlemnt  of  husband's  estate 46 

—  right  to  children 28,  63 

—  right  to  homestead 40 

—  right  to  sue 50,   51 

—  separate  property 33 

—  sole  trader 51 

—  stock  in  corporations 47,  48 

—  will  of 48 

Marrying  under  false  pretenses 56 

Master  and  servant   (See  Apprentices). 

Minor,  capable  of  marriage,  when 4 

—  custody  of 28,  62 

—  earnings  of,  who  entitled  to 29,  62 

Mother   (See  Parent). 

Necessaries  furnished  to  wife,  husband  liable 27 

Neglect    (See  Wilful  Neglect). 
Parent 

—  allowance  to,  for  support  of  child 29 

—  no  control  over  child's  property 29,  63 

—  obligations   of 61,    64 

—  when  authority  ceases 29 

Prevention  of  cruelty  to  children 92 

Privileged  communications 53 

Procuration     54 

Prostitution 54,  58,  59,  71 

Rape    57 

Recrimination    21 

Reform  schools 76 

Relatives  may  protect  minor  child 64 

Seduction 

—  damages    for 51 

—  as  crime 54 

Separate  property  (See  Husband,  Married  Woman). 

—  of  wife,  liable  for  debts,  when 34 

Society  for  prevention  of  cruelty  to  children 92 

Succession     39 

Support 

—  of  wife  by  husband 26 

—  during  divorce  suit   24 

—  after  divorce 24 

—  of  children 61,   71 

—  of  husband  by  wife 26 

Teacher,  abusing  or  insulting 58 

Unlawful    cohabitation 59 

—  compelling 59,     60 

Wages  of  minor 29,  62 

Wife    (See  Married  woman). 

Wilful  desertion 16 

Wilful  neglect 18 

Will 38 

—  of  husband  by  wife 26 


96 


Gaylord  Bros. 

Makers 
Syracuse,  N  Y. 
PAT.  JAN.  21.  1908 


